Petition for Writ of Certiorari — James R. Fouts, Petitioner v. The Warren City Council, et al.

No.

IN THE

JAMES R FOUTS;

Petitioner

v.

THE WARREN CITY COUNCIL, THE WARREN

CITY ELECTION COMMISSION; ANTHONY G

FORLINI in his official capacity as MACOMB

COUNTY CLERK, and SONJA D BUFFA in her

official capacity as WARREN CITY CLERK, jointly

and severally,

Respondents

On Petition For Writ Of Certiorari

To The United States Sixth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

Nabih H. Ayad

Counsel of Record

William D. Savage

Ayad Law, PLLC

645 Griswold St., Ste. 2202

Detroit, MI 48226

P: 313.983.4600

i

QUESTIONS PRESENTED

1. Where an individual plaintiff challenges under

the First and Fourteenth Amendments, as

applied to him only, the constitutionality of a

city charter provision which bars him from the

ballot by providing a lesser term limit for him

than for others, are courts to apply the doctrine

of Anderson v. Celebrezze, 460 U.S. 780, 103

S.Ct. 1564, 75 L.Ed.2d 547 (1983), and Burdick

v. Takushi, 504 U.S. 428, 112 S.Ct. 2059, 119

L.Ed.2d 245 (1992), or does the Sixth Circuit’s

carveout for “term-limit challenges” apply to

automatically subject the plaintiff’s claims to

rational basis review?

2. Is the charter provision which kept Petitioner

off the 2023 ballot ‘rational’ for purposes of

rational basis scrutiny, when its only purpose

is to limit all elected officials time in office, and

it does not do that, as shown by Michigan state

court case Boike v. Green, No. 365681, 2023 WL

3588168, at *1 (Mich. Ct. App. May 22, 2023),

in which it was decided that the same charter

provision at issue here could not preclude one

of Petitioner’s political rivals from running for

a fourth term, because he had left one of his

prior terms early?

3. Is ineligibility for a public office a legal

disability for purposes of analyzing whether a

laws application to Petitioner is impermissibly

“retroactive?”

ii

LIST OF PROCEEDINGS IN FEDERAL TRIAL

AND APPELLATE COURT

This petition arises out of the United States

District Court for the Eastern District of Michigan,

case James R. Fouts v Warren City Council, et al., no.

23-cv-11868. Petitioner appealed the dismissal of that

case to the United States Sixth Circuit Court, appeal

no. 23-1826, which affirmed the district court.

The district court dismissal and circuit court

affirmation are the subject of this petition.

TABLE OF CONTENTS

QUESTIONS PRESENTED

ii

LIST OF PROCEEDINGS IN FEDERAL

TRIAL AND APPELLATE COURTS

iii

TABLE OF CONTENTS

iii

TABLE OF AUTHORIT

v

I.

PETITION FOR WRIT OF

CERTIORARI

1

II.

OPINIONS BELOW

1

III.

JURISDICTION

1

IV.

STATUTES INVOLVED IN THE

CASE

1

V.

STATEMENT OF THE CASE

2

iii

VI.

ARGUMENT

6

1. In affirming the dismissal of

Petitioner’s claim for violation of his

rights to political expression and

association under the First Amendment,

the lower courts erred requiring review

by failing to apply the Anderson-Burdick

doctrine, failing to apply strict or

intermediate scrutiny, and by finding a

rational basis for the law in question.

6

2.

The lower courts erred requiring

review when they dismissed Petitioner’s

claim for violation of his Fourteenth

Amendment due process rights after

ruling that Petitioner had no

fundamental rights which were infringed

by Defendants’ conduct and, therefore,

the charter amendment could not

impermissibly retroactively apply to him.

18

3. The lower courts erred requiring

review in dismissing Petitioner’s claims

for violation of his equal protection rights

under the Fourteenth Amendment,

because it was error to rule that

Petitioner did not identify anyone

similarly situated to him that was

treated disparately, alternatively that

Petitioner was not a class of one.

25

CONCLUSION

29

iv

APPENDIX

A. Opinion and Order Granting Warren

City Council’s and Macomb County Clerk’s

Motions to Dismiss and Denying Plaintiff’s

Motion for Expedited Review as Moot.

(September 5, 2023)….Pet. App.

a.1

B. Opinion and Order of the United States

Circuit Court Affirming District Court.

(April 2, 2024)…………Pet. App.

a.21

C. Warren, Michigan, City Charter §§ 4.3(d)

and 4.4(d)……Pet. App.

a.41

TABLE OF AUTHORITIES

Anderson v. Celebrezze, 460 U.S. 780,

103 S.Ct. 1564, 75 L.Ed.2d 547 (1983)

8,12

Boike v. Green, No. 365681, 2023 WL

3588168, at *1 (Mich. Ct. App. May 22,

2023)

3,14,16

Burdick v. Takushi, 504 U.S. 428, 112 S.

Ct. 2059, 119 L. Ed. 2d 245 (1992)

8,12

Citizens for Legislative Choice v. Miller,

144 F.3d 916, 918 (6th Cir. 1998)

15,17

v

Clements v. Fashing, 457 U.S. 957, 963

(1982)

9,11,29

E. Enterprises v. Apfel, 524 U.S. 498,

547, 118 S. Ct. 2131, 2158, 141 L. Ed. 2d

451 (1998)

20

Franks v. Rubitschun, 312 F. App'x 764,

765–66 (6th Cir. 2009)

28

Graveline v. Benson, 992 F.3d 524, 546

(6th Cir. 2021)

15

Green Party of Tennessee v. Hargett, 791

F.3d 684, 693 (6th Cir. 2015)

10-12

14,15,27

Hampton v. United States, 191

F.3d 695, 699 (6th Cir. 1999)

24

Kowall v. Benson, 18 F.4th 542 (6th Cir.

2021), cert. denied, 143 S. Ct. 88, 214 L.

Ed. 2d 15 (2022)

7-9,11,

15,17

Landgraf v. USI Film Prod., 511 U.S. 19,20,22

244, 275, 114 S. Ct. 1483, 1502, 128 L. Ed.

2d 229 (1994)

Reform Am. v. City of Detroit, Michigan, 27

37 F.4th 1138, 1159 (6th Cir.), cert.

denied, 143 S. Ct. 448, 214 L. Ed. 2d 255

(2022)

Sanders v. Allison Engine Co., 703 F.3d

930, 948 (6th Cir. 2012)

20

vi

Speet v. Schuette, 726 F.3d 867, 871–72

(6th Cir. 2013)

10

United States v. Barrett, 504 F.2d 629,

633 (6th Cir. 1974), aff'd, 423 U.S. 212,

96 S. Ct. 498, 46 L. Ed. 2d 450 (1976)

23

United States v. Breckenridge, 899

F.2d 540, 542 (6th Cir. 1990)

24

United States v. Cassidy, 899 F.2d 543,

549 (6th Cir. 1990)

24

United States v. Young, 766 F.3d 621,

623 (6th Cir. 2014)

25

Walker v. United States, 800 F.3d

720, 723 (6th Cir. 2015).

24

Warren City Council v. Buffa, No.

365488, 2023 WL 3046530, at *4 (Mich.

Ct. App. Apr. 21, 2023), appeal denied,

511 Mich. 962, 989 N.W.2d 679 (2023)

5,21

Williamson v. Lee Optical Co., 348 U.S.

483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563

(1955)

29

City Statutes

Michigan, City Charter §§ 4.3(d)

1,2

Michigan, City Charter §§ 4.4(d)

1,2

vii

Publications

Hochman, The Supreme Court and the

Constitutionality of Retroactive

Legislation, 73 Harv. L.Rev. 692, 693

(1960)

22

1

I.

PETITION FOR WRIT OF CERTIORARI

James R. Fouts petitions the Court for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Sixth Circuit.

II.

OPINIONS BELOW

The district court’s Opinion and Order

Granting Warren City Council’s and Macomb County

Clerk’s Motions to Dismiss is unpublished. Fouts v.

Warren City Council, No. 23-11868, 2023 WL 5737793

(E.D. Mich. Sept. 5, 2023), aff'd, 97 F.4th 459 (6th Cir.

2024). (Appx. A., a. 1.) The circuit court’s Opinion

affirming the district court’s dismissal is reported.

Fouts v. Warren City Council, 97 F.4th 459 (6th Cir.

2024). (Appx. B., a. 21.)

III.

JURISDICTION

This petition requests review of the Sixth

Circuit’s April 2, 2024 Opinion and Judgment (Appx.

B, a. 21.) It is brought pursuant to Supreme Court

Rule 13.

This Court has jurisdiction pursuant to 28 USC

§ 1254.

IV.

STATUTES INVOLVED IN THE CASE

The statute at issue in this case is a city

charter, Warren, Michigan, City Charter §§ 4.3(d) and

4.4(d), which states:

Sec. 4.3—Certain persons ineligible for

city office.

2

(d) A person shall not be eligible to hold

the office of mayor, city council, city clerk

or city treasurer for more than the

greater of three (3) complete terms or

twelve (12) years in that office.

Sec. 4.4—Terms of office.

(d) A person shall not be eligible to hold

the office of mayor, city council, city clerk

or city treasurer for more than the

greater of three (3) complete terms or

twelve (12) years in that particular

office.

Amended Charter Provisions, Appx.

C, a, 41.

V.

STATEMENT OF THE CASE

At the time of Petitioner’s filing of his complaint

in the US district court, he was the Mayor of Warren

(Michigan’s third most populous city), finishing out

his fourth term as mayor. Petitioner has historically

had exceptionally high approval ratings amongst the

voters of the City of Warren, having won multiple

elections in landslide victories. During his fourth

term, Respondent the Warren City Council proposed

and successfully had enacted an amendment to the

Warren City Charter which decreased the mayoral

term limits from five to three… sort of. The wording

of the charter amendment limited any individual

mayor—or city council member—to “the greater of

three (3) complete terms or twelve (12) years.”

3

Amended Charter Provisions, Appx. C, a, 41

(emphasis added). The City Council’s president at the

time happened to be Petitioner’s political rival, also

running for Mayor of Warren, Patrick Green. Despite

the same language applying to him, Patrick Green

was on his fourth term as City Council Member, as a

Michigan court interpreted the “greater of three (3)

complete terms” language to mean that the charter

term-limit allowed for an individual to serve twocomplete terms plus indefinite near-complete terms;

Because it is only the third completion of a term that

triggers the term-limit and bars one from the ballot.

Boike v. Green, No. 365681, 2023 WL 3588168, at *1

(Mich. Ct. App. May 22, 2023). For that reason, at the

time the charter amendment passed, the only person

alive who it would definitely limit from running for

mayor in perpetuity was Petitioner, because he was

the only person with three complete terms as mayor

under his belt.

Because the 2020 charter amendment did not

contain any language indicating it should be applied

retroactively, and because Petitioner had always

planned to run for five terms as mayor, Petitioner filed

with the Warren City Clerk to be placed on the ballot

for the November 2023 mayoral election.

On February 21, 2023, the Warren City Council

brought suit in Michigan state court against the City

Clerk and County Clerk (but not Petitioner, who

was never a party to any state court action

regarding the charter amendment) to have

Petitioner removed from the ballot.

On March 23, 2023, the Macomb County Court

decided against the City Council:

4

The court expressed two concerns

regarding the 2020 amendment. First,

that the [originally proposed] language

“any terms or years served prior to this

amendment are included” was not

included in the proposal question on the

ballot or in the charter. Second, that

there was a discrepancy on the ballot

between the explanatory portion's

statement that that the amended term

limits would be “three (3) terms or twelve

(12) years” and the proposal question's

statement that the amended term limits

would be “the greater of three (3)

complete terms or twelve (12) years.”

The court stated that the failure to

include the “terms served prior”

language was especially troubling

because the Council had included similar

language in the 1998 proposal.

The court then discussed retroactivity,

and observed that the charter language

reflected no clearly manifested intent for

term limits to include prior terms

served… the Council's interpretation

would attach a new disability with

respect to past considerations, as it

would prevent Mayor Fouts from

running on the basis of his prior terms

served… The court decided that the

ballot language and charter were unclear

on whether previous terms served are

counted toward the current term limits

5

and denied mandamus and granted

summary disposition to defendants.

Warren City Council v. Buffa, No.

365488, 2023 WL 3046530, at *4 (Mich.

Ct. App. Apr. 21, 2023), appeal denied,

511 Mich. 962, 989 N.W.2d 679 (2023)

(emphasis added).

The City Council appealed and, on April 21,

2023, the Michigan Court of Appeals decided, without

hearing oral arguments, against the City Clerk and

ordered her to remove Petitioner from the mayoral

ballots. An application for leave to appeal was filed

with the Supreme Court of Michigan.

On May 17, 2023, the Supreme Court of

Michigan declined to hear an appeal of Defendant City

Council’s case.

The City Clerk complied with the Michigan

Court of Appeals order and removed Petitioner from

all mayoral election ballots.

Petitioner began the process of attempting to

ascertain and enforce his own rights, which have

never been represented before the Michigan courts.

After two other law firms were unable to assist

Petitioner, Petitioner retained his current counsel.

On August 2, 2023, the district court lawsuit

was filed against only necessary defendants.1 By

August 3, 2023, all defendants were served. On

1 The defendants are The Warren City Council; The Warren City

Election Commission; The Macomb County Clerk; and the

Warren City Clerk. Counsel for the Election Commission and

City Clerk did not file a motion to dismiss in the district court,

but answered that they would comply with whatever the district

court ordered of them.

6

August 3, 2023, Petitioner filed his motion to expedite

with the district court.

On August 7, 2023 and August 9, 2023,

Defendants filed the two motions to dismiss pursuant

to FRCivP 12(b)(6). On August 15, 2023, Petitioner

filed a dual response. On August 22, 2023, two replies

were filed. On September 5, 2023, the district court

issued its order and opinion and judgment granting

Defendants’ motions and dismissing Petitioner’s case.

District Court’s 9/5/23 Opinion & Order

Granting Motions to Dismiss, Appx. A, a, 1.

On September 8, 2023, the notice of appeal in

this case was filed with the district court.

Simultaneously with the filing of appellant’s brief in

the United States Court of Appeals for the Sixth

Circuit. Petitioner filed a motion for expedited review,

which was denied. On April 2, 2024, the Sixth Circuit

entered its opinion and order, denying Petitioner’s

appeal. Circuit Court’s 4/2/24 Opinion & Order

Affirming, Appx. B, a, 21.

Jurisdiction was proper in this case, in the

district court, because it arises under the Constitution

and laws of the United States. The district court had

subject-matter jurisdiction pursuant to 28 USC §§

1331 and 1343(3) & (4). The damages suit was

authorized by 42 USC § 1983. The district court also

had jurisdiction to grant both the requested

declaratory and injunctive relief under 28 USC §§

2201 and 2202.

VI.

1.

ARGUMENT

In

affirming

the

dismissal

of

Petitioner’s claim for violation of his

rights to political expression and

7

association

under

the

First

Amendment, the lower courts erred

requiring review by failing to apply the

Anderson-Burdick doctrine, failing to

apply strict or intermediate scrutiny,

and by finding a rational basis for the

law in question.

The lower courts erroneously held that

Petitioner could not show that any fundamental rights

of his were implicated by the charter amendment.

That amendment made him alone ineligible to run for

or hold the office of mayor in the city of Warren. Based

on that fallacy, the lower courts concluded that the

statute (charter provision) at the center of Petitioner’s

claims should be subject to only rational basis

constitutional review. “In the absence of a

fundamental right, ‘their voter claims fail on rationalbasis review …’ ” District Court’s 9/5/23 Opinion &

Order Granting Motions to Dismiss, Appx. A, a,

14. In upholding the district court’s ruling, the circuit

court explained the Sixth Circuit’s exception to the

Anderson-Burdick doctrine:

[W]e have held that the AndersonBurdick framework is “inapposite” when

a plaintiff brings a challenge to a termlimit law. Kowall, 18 F.4th at 547. This

is because term-limit laws define a

candidate’s eligibility for office,

whereas “prototypical ballot-access or

freedom-of-association case[s]” challenge

laws that “keep[] eligible candidates

off the ballot” or otherwise limit voters

8

from casting their votes for eligible

candidates. Id.

Circuit Court’s 4/2/24 Opinion &

Order Affirming, Appx. B, a, 29-30.

The Sixth Circuit’s Kowall exception to this

Honorable Court’s Anderson-Burdick doctrine is a

distinction without a difference. Petitioner brings an

“as-applied” challenge to a law being wrongfully

applied to him and limiting his favored candidate’s

(himself) access to a ballot, despite his ‘candidate’

being “otherwise qualified.” It is inconsequential that

the law being improperly applied to Petitioner is a

term-limit law because, for all the reasons stated

herein, it does not apply to him. It would be the same

as if Petitioner had never been mayor before, but

Defendants were applying a three-term limit to him to

keep him off the ballot; Petitioner’s is an “as-applied”

challenge. One can imagine the conflict of doctrines if

a municipality misapplied a term-limit law to a

plaintiff of a protected minority class. Would the

municipality be automatically entitled to rational

basis scrutiny simply because their chosen method of

discrimination was an irrelevant term limit provision?

In that way, the lower courts failed to apply the

proper Anderson-Burdick review of Petitioner’s case.

[Anderson v. Celebrezze, 460 U.S. 780, 103 S. Ct. 1564,

75 L. Ed. 2d 547 (1983); Burdick v. Takushi, 504 U.S.

428, 112 S. Ct. 2059, 119 L. Ed. 2d 245 (1992).]2

2 The Anderson-Burdick doctrine requires courts to do a three-

step analysis to determine whether to apply strict or

intermediate (but not rational basis) scrutiny to a plaintiffs’

election law challenges, and is described more fully below.

9

The lower courts cited to two cases in

concluding that Petitioner had no fundamental right

burdened by the retroactive application of the charter

provision: Kowall v. Benson, 18 F.4th 542 (6th Cir.

2021), cert. denied, 143 S. Ct. 88, 214 L. Ed. 2d 15

(2022) and Clements v. Fashing, 457 U.S. 957, 102 S.

Ct. 2836, 73 L. Ed. 2d 508 (1982). In Kowall, the

Plaintiffs challenged the term-limits themselves,

which have long been held constitutional and which

Petitioner here never challenged. “[V]eteran

legislators challenge[] the term-limit provision

again.” Kowall, at 545 (emphasis added). In

Clements, the Plaintiffs challenged a law which would

automatically resign them from public office if they

announced their candidacy for a higher public office

during that term, establishing a maximum waiting

period (in Texis) of two-years for the Plaintiffs to run

for state legislature, if those Plaintiffs did not want to

automatically resign their current offices. “A ‘waiting

period’ [of a maximum of two years] is hardly a

significant barrier to candidacy.” Clements, at 967.

Here, however, the lower courts recognized in

their opinions that Petitioner did not challenge a

waiting period and “Petitioner [did] not challeng[e]

the constitutionality of term limits in general, but

only as applied retroactively [and] to [only]

him[].” District Court’s 9/5/23 Opinion & Order

Granting Motions to Dismiss, Appx. A, a, 13

(emphasis added).3 “[B]ringing an as-applied

3 The district court acknowledged that Petitioner’s challenge to

the charter provision was “as-applied” as opposed to “facial.” “A

facial challenge to a law's constitutionality is an effort to

invalidate the law in each of its applications, to take the law off

the books completely… In contrast to an as-applied challenge,

which argues that a law is unconstitutional as enforced against

10

challenge does not change the level of scrutiny…”

Circuit Court’s 4/2/24 Opinion & Order

Affirming, Appx. B, a, 31. “Under the Anderson–

Burdick test, the court must first ‘consider the

character and magnitude of the asserted injury to

the rights protected by the First and Fourteenth

Amendments that the Plaintiff seeks to vindicate.’ ”

Green Party of Tennessee v. Hargett, 791 F.3d 684, 693

(6th Cir. 2015) (emphasis added, quoting Anderson,

460 U.S. at 789, 103 S.Ct. 1564).4

the plaintiffs before the court…” Speet v. Schuette, 726 F.3d 867,

871–72 (6th Cir. 2013) (citations removed, cleaned up). Yet, the

lower courts erred in holding that the law in question had the

rational basis of applying the same “eligibility requirement to

candidates for the office of mayor, city council, city clerk and city

treasurer” [District Court’s 9/5/23 Opinion & Order

Granting Motions to Dismiss, Appx. A, a, 14] because the

rational basis needed was that of applying the law

retroactively to Plaintiff to burden him, exclusively, with

a term limit for the mayor’s office, when the statute

cannot prohibit anyone else from holding any office for

the rest of their lives if they wish, because 1) only

Petitioner had three terms completed at the time of the

laws enactment, and 2) so long as every future mayor

(other than Petitioner) resigns before the last day of their

third term, the charter provision does not apply to keep

them from running for a fourth, fifth, sixth, etc. term.

4 It is of no consequence whether Plaintiff’s injury is born out of

the First Amendment or Fourteenth Amendment because the

Sixth Circuit has held that Fourteenth Amendment rights

become associative First Amendment rights for purposes of

election law challenges. The issue is, therefore, the severity of the

injury.

While the Supreme Court has not yet applied this

test to ballot-access challenges on pure equalprotection grounds, our cases hold that the

Anderson–Burdick test serves as “a single

11

Accordingly, under the Anderson-Burdick

doctrine, the Court was to determine the applicable

level of scrutiny based on Petitioner’s as-applied

injury, not based on the lesser, generalized, injuries

asserted in Kowall and Clements. Yet the lower courts

ruled based on the injuries asserted in those other

cases. “[W]e have held that the existence of barriers to

a candidate's access to the ballot ‘does not of itself

compel close scrutiny.’ Clements v. Fashing, 457 U.S.

957, 963 (1982). Therefore, rational basis review

applies to Plaintiff’s First Amendment challenge.”

District Court’s 9/5/23 Opinion & Order

Granting Motions to Dismiss, Appx. A, a, 14;

Circuit Court’s 4/2/24 Opinion & Order

Affirming, Appx. B, a, 32.

standard for evaluating challenges to

voting restrictions.” Obama for Am. v. Husted,

697 F.3d 423, 430 (6th Cir.2012). Further, many

federal courts of appeals have applied the

Anderson–Burdick balancing test to both First

Amendment and Equal Protection Clause

challenges to ballot-access laws. See e.g., Rogers

v. Corbett, 468 F.3d 188, 193–94 (3d Cir.2006)

(abandoning traditional tiers of equal-protection

scrutiny and applying Anderson ); Republican

Party of Ark. v. Faulkner Cnty., Ark., 49 F.3d

1289, 1293 n. 2 (8th Cir.1995) (“In election

cases,

equal

protection

challenges

essentially constitute a branch of the

associational rights tree.”); Fulani v.

Krivanek, 973 F.2d 1539, 1543 (11th Cir.1992)

(applying the Anderson balancing test).

Green Party of Tennessee v. Hargett, 791 F.3d

684, 692 (6th Cir. 2015).

12

In concluding that the challenged statute was

automatically subject to rational basis scrutiny, the

lower courts erred by not applying the proper legal

analysis. In the Sixth Circuit, the level of

constitutional scrutiny in ballot-access cases is

determined by applying the Anderson-Burdick

doctrine. [Anderson v. Celebrezze, 460 U.S. 780, 103 S.

Ct. 1564, 75 L. Ed. 2d 547 (1983); Burdick v. Takushi,

504 U.S. 428, 112 S. Ct. 2059, 119 L. Ed. 2d 245

(1992)] Accordingly, the lower courts were required to

perform an analysis under the Anderson-Burdick

framework to determine what level of constitutional

scrutiny applied; It is not automatically rational basis

scrutiny:

In Green Party V, we decided to apply the

framework of Anderson–Burdick to a

ballot-ordering equal-protection claim

because “the Plaintiffs' claim draws not

only on the Equal Protection Clause, but

also

on

the

First

Amendment:

essentially, the Plaintiffs argue that they

have been denied an equal opportunity to

exercise their rights to association and

political expression.” 767 F.3d at 551.

This case is markedly similar: the

Plaintiffs argue that the ballot-retention

statute

denies

them

an

equal

opportunity to exercise their rights to

association and political expression.

Once again, we apply the Anderson–

Burdick test.

Green Party of Tennessee v. Hargett, 791

F.3d 684, 692–93 (6th Cir. 2015).

13

The lower courts’ legal error in applying the

wrong legal standard was not harmless, as—under

the Anderson-Burdick doctrine—Petitioner’s case

warrants the application of heightened scrutiny to the

statute in question.

Under the Anderson–Burdick test, the

court must first “consider the character

and magnitude of the asserted injury to

the rights protected by the First and

Fourteenth Amendments that the

Plaintiff seeks to vindicate.” Anderson,

460 U.S. at 789, 103 S.Ct. 1564. Second,

it must “identify and evaluate the precise

interests put forward by the State as

justifications for the burden imposed by

its rule.” Id. Finally, it must “determine

the legitimacy and strength of each of

those interests” and “consider the extent

to which those interests make it

necessary to burden the Plaintiff's

rights.” Id.

When the burden on the right to vote is

“severe,” the statute will be subject to

strict scrutiny and must be narrowly

tailored and advance a compelling state

interest. Burdick, 504 U.S. at 434, 112

S.Ct. 2059. If the burden is “reasonable”

and “nondiscriminatory,” the statute will

be subject to rational basis and survive if

the state can identify “important

regulatory interests” to justify it. See id.

If the burden lies somewhere in between,

14

courts will “weigh[ ] the burden on the

plaintiffs against the state's asserted

interest and chosen means of pursuing

it.” Green Party V, 767 F.3d at 546.

Green Party of Tennessee v. Hargett, 791

F.3d 684, 693 (6th Cir. 2015).

Here, the burden on Petitioner’s First

Amendment and Fourteenth Amendment rights is

severe as it is a lifetime bar to Petitioner’s candidacy,

necessitating strict scrutiny, and the statute cannot

survive strict scrutiny because it does not even

accomplish its stated policy goal of limiting any other

candidate’s time in office, except Petitioner—the one

who already had three complete terms under his belt.5

In a recent Sixth Circuit case relied on by

Petitioner, the Sixth Circuit applied the AndersonBurdick doctrine and found “that Michigan's system

for qualifying independent candidates violate[d] the

First and Fourteenth Amendments of the

As Plaintiff argued in the lower courts, Defendant Council

worded the statute to limit individuals to “the greater of three

(3) complete terms or twelve (12) years.” Boike v. Green, No.

365681, 2023 WL 3588168, at *1 (Mich. Ct. App. May 22, 2023).

In other words, whereas Plaintiff was barred from running for

any City of Warren office again as soon as the 2020 charter

amendment passed, all of the members of Defendant Council who

drafted the statute, and any other future office holder, could have

resigned a day before their third term completed, and run again,

and again, and so on. See Boike, supra, in which the Michigan

Court of Appeals determined that Defendant Council’s president

and (at the time) Plaintiff’s rival for the 2024 mayorship, Patrick

Green, was not limited to three “terms or 12 years” under the

2020 charter amendment because he had resigned from one of

his terms early.

5

15

Constitution” in regard to an individual candidate for

attorney general. Graveline v. Benson, 992 F.3d 524,

546 (6th Cir. 2021). In Graveline, the individual

potential candidate “attempted to get his name on

Michigan's November 2018 general election ballot.”

The Sixth Circuit reiterated its precedent that “[t]he

hallmark of a severe burden is exclusion [] from

the ballot,” and struck down an entire Michigan

“statutory scheme” because it “unconstitutionally

burden[ed] Plaintiffs’ First Amendment rights.” Id. at

528, 543, 548 (6th Cir. 2021) (emphasis added).

Therefore, Petitioner Fouts’ exclusion form the ballot

is a severe burden on his First Amendment and

Fourteenth Amendment rights.

Because “the burden on [Petitioner’s rights] is

‘severe,’ the statute [must] be subject[ed] to strict

scrutiny and must be narrowly tailored and advance a

compelling state interest.” Green Party of Tennessee v.

Hargett, 791 F.3d 684, 693 (6th Cir. 2015), citing

Burdick, 504 U.S. at 434, 112 S.Ct. 2059. According to

this case, relied on by the lower courts, the compelling

interest served by term limits is to limit the time an

individual politician may spend in a particular

political office. “[W]hat are [term limits]? Term limits

are the state's attempt to set qualifications for its

officeholders. Indeed, when a state enacts term limits,

it chooses a ‘citizen legislature over a professional

legislature.’” Kowall v. Benson, 18 F.4th 542, 547 (6th

Cir. 2021), cert. denied, 143 S. Ct. 88, 214 L. Ed. 2d 15

(2022); quoting Citizens for Legislative Choice v.

Miller, 144 F.3d 916, 918 (6th Cir. 1998). But the

statute (charter provision) at issue here does not, on

its face, accomplish that goal. That is because

Defendant Council intentionally worded the statute to

limit individuals to “the greater of three (3)

16

complete terms or twelve (12) years.” Boike v. Green,

No. 365681, 2023 WL 3588168, at *1 (Mich. Ct. App.

May 22, 2023) (discussing the very same charter

amendment at issue in this case). In other words,

whereas Petitioner was barred from running for any

City of Warren office again as soon as the 2020 charter

amendment passed because he had already completed

three full terms of office, all of the members of

Defendant Council who drafted the statute (or

any current or future office-holders) could

resign a day before their third term completed,

and run again, and again, in perpetuity,

defeating the supposed ‘limit’ on ‘professional

legislatures’ that the term limits are meant to

serve.

That only Petitioner’s ballot access was denied

is not mere conjecture. The president of the Warren

City Counsel and likely architect of the charter

amendment is Patrick Green, who was also running

against Petitioner as a candidate for mayor. In the

Boike case, supra, the Michigan Court of Appeals

determined that Patrick Green was not limited to

three “terms or 12 years” under the plain wording of

the 2020 charter amendment because he had

resigned from one of his terms early, but would

only be denied ballot access after he completed

another full term. In other words, the charter

amendment, when passed, could never guarantee that

any office holder not take a fourth, fifth, sixth, etc.

term, save one, Petitioner.6 (As none of the politicians

6 Accordingly, the charter

amendment applies a lifetime term

limit to Plaintiff, and no term limit to everyone else. “Lifetime

term limits forever bar officials from serving more than a set

number of terms, whereas consecutive term limits allow them to

serve an indefinite number of terms so long as they periodically

17

holding the political offices to which the charter

provision applied had served three complete terms at

its passing, except Petitioner.) Therefore, Defendant

Council’s stated reasoning for the charter amendment

of “equal term limits for all elected officials” is not

served either. District Court’s 9/5/23 Opinion &

Order Granting Motions to Dismiss, Appx. A, a,

14.

The Circuit Court summarily dismissed the

above argument, considering it too conjectural. “Fouts

argues that, in effect, the term-limit amendment then

only limits him from serving another term because he

has already completed a full three terms in office. But

the highly speculative scenario that Warren office

holders would evade the term-limit amendment’s

restrictions by resigning early does not meet Fouts’

burden…” Circuit Court’s 4/2/24 Opinion & Order

Affirming, Appx. B, a, 33. Yet, both lower courts

relied on Kowall v. Benson, 18 F.4th 542, 546–47 (6th

Cir. 2021) in ruling that all claims involving a termlimit statute are exempt from the Anderson-Burdick

doctrine and subject instead to rational basis review.

Kowall, in turn, relied on Citizens for Legislative

Choice v. Miller, 144 F.3d 916, 924 (6th Cir. 1998),

which holds:

Contrary to the plaintiffs' assurances,

consecutive term limits are not a viable

alternative… Legislators might adjust

their conduct, and bow to special interest

groups, in the hopes of someday

returning to office. Id. Moreover, some

leave office.” Citizens for Legislative Choice v. Miller, 144 F.3d

916, 918 (6th Cir. 1998).

18

incumbents could arrange for

“caretakers” to hold their offices for

a short period of time, and thereby

repeatedly return to office after only

short absences. Id. See also Nevada

Judges Ass'n v. Lau, 112 Nev. 51, 910

P.2d 898, 902 (1996) (noting that

consecutive term limits may not achieve

the desired rate of turnover).

The above ‘loophole’ is far more speculative

than the one Petitioner presents, which was actually

used by his political rival and ratified by a state court.

By failing to limit the time politicians can hold in the

city’s political offices, the provision fails to accomplish

its stated goal, thus failing to meet strict scrutiny or

even possess a rational basis.

2.

The lower courts erred requiring

review

when

they

dismissed

Petitioner’s claim for violation of his

Fourteenth Amendment due process

rights after ruling that Petitioner had

no fundamental rights which were

infringed by Defendants’ conduct and,

therefore, the charter amendment

could not impermissibly retroactively

apply to him.

The lower courts erred in their analysis of

Petitioner’s Fourteenth Amendment due process

claim in holding that Petitioner needed to show that

anything higher than a ‘constitutional right’ was

infringed by the charter provision’s retroactive

application to him. Petitioner does not and did not

19

need to meet such a high burden to succeed on his due

process claim. “[W]e do not restrict the presumption

against statutory retroactivity to cases involving

‘vested rights.’ ” Landgraf v. USI Film Prod., 511 U.S.

244, 275, 114 S. Ct. 1483, 1502, 128 L. Ed. 2d 229

(1994).

See, e.g., Miller v. Florida, 482 U.S. 423,

430, 107 S.Ct. 2446, 2451, 96 L.Ed.2d

351 (1987) (“A law is [unconstitutionally]

retrospective if it ‘changes the legal

consequences of acts completed before its

effective date’ ”) (quoting Weaver v.

Graham, 450 U.S. 24, 31, 101 S.Ct. 960,

67 L.Ed.2d 17 (1981)); Union Pacific R.

Co. v. Laramie Stock Yards Co., 231 U.S.

190, 199, 34 S.Ct. 101, 102, 58 L.Ed. 179

(1913) (retroactive statute gives “a

quality or effect to acts or conduct which

they did not have or did not contemplate

when they were performed”); Sturges v.

Carter, 114 U.S. 511, 519, 5 S.Ct. 1014,

1018, 29 L.Ed. 240 (1885) (a[n

unconstitutional] retroactive statute is

one that “takes away or impairs vested

rights acquired under existing laws, or

creates a new obligation, imposes a new

duty, or attaches a new disability”). See

also Black's Law Dictionary 1184 (5th ed.

1979) (quoting Justice Story's definition

from Society ); 2 N. Singer, Sutherland

on Statutory Construction § 41.01, p. 337

(5th rev. ed. 1993) (“The terms

‘retroactive’ and ‘retrospective’ are

synonymous in judicial usage.... They

20

describe acts which operate on

transactions which have occurred or

rights and obligations which existed

before passage of the act”).

Landgraf v. USI Film Prod., 511 U.S.

244, 269, 114 S. Ct. 1483, 1499, 128 L.

Ed. 2d 229 (1994).

“The Due Process Clause ... protects the

interests in fair notice and repose that may be

compromised by retroactive legislation; a justification

sufficient to validate a statute's prospective

application under the Clause may not suffice to

warrant its retroactive application.” Sanders v.

Allison Engine Co., 703 F.3d 930, 948 (6th Cir. 2012)

(quoting Landgraf v. USI Film Prods., 511 U.S. 244,

266, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994)).

Accordingly, the Supreme Court has made clear that

‘property rights’ are not the only rights protected

against retroactive application of new laws.

“[F]or centuries our law has harbored a

singular distrust of retroactive statutes.” E.

Enterprises v. Apfel, 524 U.S. 498, 547, 118 S. Ct.

2131, 2158, 141 L. Ed. 2d 451 (1998) (Justice Kennedy

concurring in the judgment and dissenting in part).

Here, the law which Petitioner challenges is the

definition of a law which the courts should view with

suspicion. In fact, prior to the Michigan Court of

Appeals decision, a Macomb County Court judge ruled

that the charter amendment could not be applied to

preclude Petitioner from the mayoral election ballot,

in part because of his strong suspicion of the

motivations of the Defendants here in how they

passed the amendment.

21

The court stated that the failure to

include the “terms served prior”

language was especially troubling

because the Council had included similar

language in the 1998 proposal. The court

then discussed retroactivity, and

observed that the charter language

reflected no clearly manifested intent for

term limits to include prior terms served.

Although Mayor Fouts did not have a

vested

interest,

the

Council's

interpretation would attach a new

disability

with

respect

to

past

considerations, as it would prevent

Mayor Fouts from running on the basis

of his prior terms served.

Warren City Council v. Buffa, No.

365488, 2023 WL 3046530, at *4 (Mich.

Ct. App. Apr. 21, 2023).)

Precedent from this Honorable Court supports

the Macomb County Circuit Court’s suspicion that the

charter amendment was passed to defeat a political

opponent (Petitioner) from the legislators who

proposed it (Defendant Council).

[Our] cases reflect our recognition

that retroactive lawmaking is a

particular concern for the courts

because

of

the

legislative

“tempt[ation] to use retroactive

legislation as a means of retribution

against

unpopular

groups

or

22

individuals.” Landgraf v. USI Film

Products, 511 U.S. 244, 266, 114 S.Ct.

1483, 1497–1498, 128 L.Ed.2d 229

(1994); see also Hochman, The Supreme

Court and the Constitutionality of

Retroactive Legislation, 73 Harv. L.Rev.

692, 693 (1960) (a retroactive law

“may be passed with an exact

knowledge of who will benefit from

it”).

Id. at 548, 2159 (emphasis added).

Despite the fact that Petitioner extensively

argued that by Defendants’ counting against

Petitioner his terms as mayor served prior to the

enactment of the new term limits provision they

were unconstitutionally applying a legal

disability to him retroactively, the lower courts

erroneously found that being precluded from running

for public office was not a legal disability.7 “[T]he

7 Petitioner also argued that he had a vested right which was

violated, but the district court summarily dismissed it based on

erroneous circular reasoning:

Plaintiff maintains that he nevertheless has a

vested right to run for office because he was

“already legally certified to be on the ballot by the

clerk Defendants.” ECF No. 18, PageID.150.

However, the Michigan Court of Appeals found

that was an unauthorized act and ordered

Plaintiff’s name removed from the ballot.

Michigan courts have long held unauthorized

acts do not give rise to a vested right.

23

Court [is not] aware of any[ cases] that recognizes the

inability to be a candidate for elected office as a legal

disability that entitles a person to due process.”

District Court’s 9/5/23 Opinion & Order

Granting Motions to Dismiss, Appx. A, a, 17.

“Fouts’ cited cases … merely refer to holding public

office as a ‘civil right’ or refer to the loss of the right to

possess a firearm … as a ‘legal disability.’ ” Circuit

Court’s 4/2/24 Opinion & Order Affirming, Appx.

B, a, 36.

Petitioner disputes that there is such a thing as

a “mere” civil right. The ability to run for and hold

public office is fundamental, and its loss via a felony

conviction is universally and ubiquitously known as a

‘legal disability.” See United States v. Barrett, 504

F.2d 629, 633 (6th Cir. 1974), aff'd, 423 U.S. 212, 96 S.

Ct. 498, 46 L. Ed. 2d 450 (1976), noting that the

inability to vote or hold public office are “disabilities.”

Hence, if a “convicted felon” has his civil

rights restored by operation of state law,

with or without a certificate or order

documenting the event, we must look to

the whole of state law of the state of

conviction to determine whether the

“convicted felon” is entitled to vote, hold

public office and serve on a jury and also

District Court’s 9/5/23 Opinion & Order

Granting Motions to Dismiss, Appx. A, a,

PageID 16.

In other words, Petitioner argued that keeping him off the ballot

was unconstitutional, and the lower courts answered that it was

constitutional because Petitioner was supposed to be kept off the

ballot.

24

whether the “convicted felon” is entitled

to exercise the privileges of shipping,

transporting, possessing or receiving a

firearm.

United States v. Cassidy, 899 F.2d 543,

549 (6th Cir. 1990).

We also held that a felon has not had his

“civil rights” restored unless, pursuant to

the law of the state of conviction, he

possesses the right to vote, to serve on a

jury and to seek and hold public office.

United States v. Breckenridge, 899 F.2d

540, 542 (6th Cir. 1990).

Our focus is particularly placed on the

three civil rights considered key by the

Sixth Circuit—the right to vote, hold

public office, and serve on a jury.

Hampton v. United States, 191 F.3d 695,

699 (6th Cir. 1999).

In determining whether Walker's “civil

rights” have been restored, precedent

indicates that we should look to three

civil rights in particular: “the rights to

vote, to serve on a jury and to seek and

hold public office.”

Walker v. United States, 800 F.3d 720,

723 (6th Cir. 2015).

25

The loss of any of the ‘three civil rights’

discussed above is, indisputably, a legal disability. See

also United States v. Young, 766 F.3d 621, 623 (6th

Cir. 2014) [“He was unaware of this legal disability.”

Referring to his loss of the right to bear arms.]

3.

The lower courts erred requiring

review in dismissing Petitioner’s

claims for violation of his equal

protection rights under the Fourteenth

Amendment, because it was error to

rule that Petitioner did not identify

anyone similarly situated to him that

was treated disparately, alternatively

that Petitioner was not a class of one.

As explained in section I, above, the lower

courts erred by not applying the Anderson-Burdick

doctrine to Petitioner’s Fourteenth Amendment equal

protection claim. However, even under the traditional

analysis which the lower courts engaged in, it

committed error requiring reversal.

That is because the lower courts, in holding

that “Plaintiff’s Fourteenth Amendment equal

protection claim fails,” [District Court’s 9/5/23

Opinion & Order Granting Motions to Dismiss,

Appx. A, a, 19] erroneously found that Petitioner was

not similarly situated to the other elected officials to

which the charter amendment applies.

Petitioner contends that the Council

discriminated against him by designing

the 2020 amendment to bar his eligibility

for re-election, while it does not bar any

of the other Warren elected officials. To

26

be ‘similarly situated’ for purposes of an

equal-protection claim, the Plaintiff and

the comparator must be alike ‘in all

relevant respects. The 2020 amendment

applies only to the mayor’s office and was

intended to bring term limits for mayor

in line with those for other elected

officials. Plaintiff does not identify

any other person in his position who

has been allowed to be on the ballot.

Because no other candidates for

mayor, or any elected office in

Warren, have served the maximum

time in office, Plaintiff cannot

demonstrate that anyone “similarly

situated” was treated differently.

District Court’s 9/5/23 Opinion &

Order Granting Motions to Dismiss,

Appx. A, a, PageID 18 (emphasis

added)

First, the lower courts erred in holding that the

Petitioner was not “alike” in all “relevant” aspects to

the other office holders mentioned in the charter

provision, as the provision makes no distinction

between any of them. The charter amendment states,

in pertinent part: “A person shall not be eligible to

hold the office of mayor, city council, city clerk or

city treasurer for more than the greater of three (3)

complete terms or twelve (12) years in that office.”

Michigan Court of Appeals Opinion, 10-2, PageID 845 (emphasis added).

Second, the lower courts also plainly erred by

concluding that the charter provision applied only to

27

the mayor (Petitioner), as the plain wording of the law

in question applies to three other offices; the prior

charter provision is not at issue in this matter.

Third, the lower courts erred in ruling that

“Plaintiff d[id] not identify any other person in his

position who has been allowed to be on the ballot[,

b]ecause no other candidates for mayor, or any elected

office in Warren, ha[s] served the maximum time in

office [and so P]laintiff cannot demonstrate that

anyone ‘similarly situated’ was treated differently.”

District Court’s 9/5/23 Opinion & Order

Granting Motions to Dismiss, Appx. A, a, 18. As

was discussed above, Petitioner did identify an

individual, who had served the “maximum time in

office” but was allowed to be on the ballot. Plaintiff’s

rival for the 2024 mayorship, Patrick Green, was not

limited to three “terms or 12 years” under the 2020

charter amendment because he had resigned from one

of his terms early.

Accordingly, Petitioner did identify an

individual similarly situated to him who was being

treated differently than him. “The Equal Protection

Clause provides that ‘all persons similarly situated

should be treated alike.’ ” Green Party of Tennessee v.

Hargett, 791 F.3d 684, 692 (6th Cir. 2015) (quoting

Cutshall v. Sundquist, 193 F.3d 466, 482 (6th

Cir.1999); in turn quoting City of Cleburne v. Cleburne

Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87

L.Ed.2d 313 (1985)). “To succeed on equal protection,

Plaintiff ‘must show that [he] was treated ‘disparately

as compared to similarly situated persons and that

such disparate treatment either burdens a

fundamental right… or has no rational basis.’

Ctr. for Bio-Ethical Reform, Inc., 648 F.3d at 379

(citation omitted).” Reform Am. v. City of Detroit,

28

Michigan, 37 F.4th 1138, 1159 (6th Cir.), cert. denied,

143 S. Ct. 448, 214 L. Ed. 2d 255 (2022). Similarly:

The Supreme Court recognized the

viability of class-of-one claims in Village

of Willowbrook v. Olech, noting that the

Equal Protection Clause's purpose “is to

secure every person within the State's

jurisdiction against intentional and

arbitrary

discrimination,

whether

occasioned by express terms of a statute

or by its improper execution through

duly constituted agents.” 528 U.S. 562,

564, 120 S.Ct. 1073, 145 L.Ed.2d 1060

(2000) (per curiam) (quotations omitted).

In Olech, the Court laid out the basic

requirements for a valid class-ofone claim: a Plaintiff must allege “that

she has been intentionally treated

differently from others similarly situated

and that there is no rational basis for the

difference in treatment.” Id.

***

As

the

Court

explained

in Olech, “[w]hether the complaint

alleges a class of one or of five is of

no

consequence

because

we

conclude that the number of

individuals in a class is immaterial

for equal protection analysis.” 528

U.S. at 564 n. *, 120 S.Ct. 1073.

Franks v. Rubitschun, 312 F. App'x 764,

765–66 (6th Cir. 2009) (emphasis added).

29

Because nowhere in the lower court record did

there appear any attempted justification of the

charter’s words “greater of three (3) complete terms,”

which renders the statute forever incapable of

limiting the time spent in office by every human

being in existence except Petitioner James R.

Fouts, the lower courts erred in holding that

Petitioner failed to show that his disparate treatment

from those similarly situated was arbitrary and

irrational. Stated another way, the rational basis of

the charter amendment: the limitation on an

individual’s time in office, is wholly optional for

everyone but Petitioner, as everyone else can resign

the day before their third term completes, and be on

future ballots in perpetuity. The “three complete

terms” classification only served the purpose of

barring the key architect of the charter provision, the

president of the City Council, from having to run

against Petitioner in the upcoming mayoral election.

“[T]hose classifications which are invidious, arbitrary,

or irrational offend the Equal Protection Clause of the

Constitution.” Clements v. Fashing, 457 U.S. 957, 967,

102 S. Ct. 2836, 2845, 73 L. Ed. 2d 508 (1982), citing

Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75

S.Ct. 461, 465, 99 L.Ed. 563 (1955).

CONCLUSION

For the above reasons and more, the petition for

certiorari should be granted.

30

Respectfully Submitted,

_________________________

Nabih H. Ayad

Counsel of Record

William D. Savage

645 Griswold St., Ste. 2202

Detroit, MI 48226

P: (313) 983-4600

APPENDIX

Pet. App. i

APPENDIX

TABLE OF CONTENTS

Appendix A Opinion and Order Granting

Warren City Council’s and

Macomb County Clerk’s Motions

to

Dismiss

and

Denying

Plaintiff’s Motion for Expedited

Review as Moot.

(September 5, 2023)….Pet. App. 1

Appendix B Opinion and Order of the United

States Circuit Court Affirming

District Court.

(April 2, 2024)…………Pet. App. 21

Appendix C Warren, Michigan, City Charter

§§ 4.3(d) and 4.4(d)……Pet. App. 41

Pet. App. 1

______________

APPENDIX A

______________

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

JAMES R. FOUTS,

Plaintiff,

vs.

Case No. 23-11868

HON. GEORGE CARAM

STEEH

THE WARREN CITY COUNCIL,

THE WARREN CITY ELECTION

COMMISSION, ANTHONY G.

FORLINI in his official capacity as

MACOMB COUNTY CLERK, and

SONJA D. BUFFA in her official

capacity as WARREN CITY CLERK.

Defendants.

____________________________/

OPINION AND ORDER GRANTING WARREN

CITY COUNCIL’S AND MACOMB COUNTY

CLERK’S MOTIONS TO DISMISS (ECF NOS. 10

and 12) AND DENYING PLAINTIFF’S MOTION

FOR EXPEDITED REVIEW AS MOOT (ECF NO. 8)

Plaintiff James Fouts is the current mayor of

the City of Warren (Warren), serving his fourth term

in office. In 2020, the electorate of Warren adopted an

Pet. App. 2

amendment to the Warren City Charter (Charter)

that imposes a three-term limit on the office of mayor.

This case arises out of plaintiff’s desire to run for a

fifth term as mayor in November 2023. Plaintiff

alleges that defendants Warren City Council

(Council), Warren City Election Commission, the

Warren City Clerk, and the Macomb County Clerk,

violated his constitutional rights by applying the

Charter amendment’s term limit retroactively to

preclude him from appearing on the ballot for the

August 8, 2023 primary. Plaintiff’s lawsuit, brought

under 42 U.S.C. § 1983, alleges a violation of his First

Amendment rights of political speech, his Fifth

Amendment1 due process rights, and his Fourteenth

Amendment right to equal application of the law. As

a remedy, plaintiff requests that the Court order the

results of the August 8, 2023 primary be decertified

and that a special election be held prior to the general

election that would include plaintiff as a candidate.

Plaintiff also seeks money damages to compensate

him for the constitutional, emotional, and economic

damages he suffered because of defendants’ unlawful

conduct.

The matter is before the Court on three

motions: the Warren City Council’s motion to dismiss

under Fed. R. Civ. P. 12(b)(1) and (6) for lack of

jurisdiction and failure to state a claim upon which

relief may be granted, ECF No. 10; Macomb County

Clerk Anthony Forlini’s motion to dismiss, ECF No.

12; and plaintiff’s motion to expedite review, ECF No.

Because plaintiff’s procedural due process claim is based on actions taken

by state actors, it comes under the protection of the Fourteenth Amendment

and will be analyzed as such. Scott v. Clay County, Tenn., 205 F.3d 867,

873 (6th Cir. 2000).

1

Pet. App. 3

8. Defendants Warren City Election Commission and

Warren City Clerk Sonja Buffa did not file a separate

motion. In their Answer, they describe their

participation in the case as procedural for purposes of

expedient execution of any order that may be issued

by the Court. Additionally, as they are named in their

official capacities, they request that the Court find

them immune from damages. ECF No. 23,

PageID.208-09.

Upon a careful review of the written

submissions, the Court deems it appropriate to render

its decision without a hearing pursuant to Local Rule

7.1(f)(2). As set forth below, the Court finds that it

has subject matter jurisdiction over plaintiff’s

complaint, but that plaintiff fails to state any claim

upon which relief may be granted. Therefore,

defendants’ motions to dismiss are GRANTED and

the motion to expedite review is DENIED as moot.

The case will be dismissed in its entirety.

FACTUAL ALLEGATIONS

This case focuses on an eligibility requirement

for mayoral candidates in Warren – specifically term

limits. Term limits for certain elected offices were first

introduced in Warren in 1998. The voters were asked

to approve a resolution to amend the Charter to

provide that the mayor, council members, clerk and

treasurer could not hold office for the greater of three

terms or 12 years in a particular office. The ballot

proposal provided that the limitation began with the

term resulting from the November 1995 election. The

resolution passed and the Charter was amended.

Pet. App. 4

In 2016, when plaintiff was serving his third

term as mayor, the electorate of Warren again voted

to amend the Charter. The proposal was to increase

the term limit for the office of mayor from the greater

of three terms or 12 years to the greater of five terms

or 20 years. The ballot proposal specified that any

years or terms served prior to the amendment would

be counted. The measure passed and the Charter was

amended.

Then in 2020, while plaintiff was in his fourth

term, the Council proposed an amendment to the

Charter to change the term limit for the office of

mayor back so it would be the same as other city

elected offices. The ballot proposal specified that

“[a]ny terms or years served prior to this amendment

are included.” The amendment passed and the

Charter now reads:

A person shall not be eligible to hold the

position of mayor, city council, city clerk

or city treasurer for more than the

greater of three (3) complete terms or

twelve (12) years in that office.

Warren City Charter, § 4.3(d).

Warren scheduled a primary election for

August 8, 2023, to determine the candidates for mayor

in the upcoming general election. Plaintiff sought to

run for a fifth term as mayor, but the Council believed

he was ineligible to run under the term limit provision

in the Charter. Council brought a mandamus action

against the Macomb County Clerk, the Warren City

Clerk, and the Election Commission to require them

Pet. App. 5

to exclude plaintiff from the 2023 primary ballot. The

Macomb County Circuit Court found that it was

unclear whether the term limit could be applied to

plaintiff, and therefore determined he was eligible to

run for re-election in 2023. Warren City Council v.

Buffa, No. 2023-000611-AW, 2023 WL 3766706, at *1,

5 (Mich.Cir.Ct. Mar. 23, 2023).

On April 21, 2023, in a published opinion, the

Michigan Court of Appeals reversed the Circuit Court

and ordered that plaintiff’s name be removed from the

ballot. Warren City Council v. Buffa, No. 365488, 2023

WL 3046530, __ N.W.2d __ (Mich. Ct. App. Apr. 21,

2023). The basis of the Michigan Court of Appeals’

decision is that the term limits in the 2020 Charter

amendment are not ambiguous and provide that all

prior terms are to be counted. The court found that

because plaintiff had already served more than three

complete terms, he was ineligible to run for reelection. Id. at * 5-6. On May 17, 2023, the Michigan

Supreme Court denied defendants’ application for

leave to appeal. 989 N.W.2d 679 (Mich. 2023).

On August 2, 2023, six days prior to the

primary election, plaintiff filed this lawsuit alleging

that

defendants

are violating

his federal

constitutional rights by proposing the 2020

amendment and by applying the term limits to

prevent him from running for another term as mayor.

STANDARD OF REVIEW

A Rule 12(b)(1) motion to dismiss for lack of

subject matter jurisdiction challenges the sufficiency

of the pleading itself. Cartwright v. Garner, 751 F.3d

752, 759 (6th Cir. 2014) (citing United States v.

Pet. App. 6

Ritchie, 15 F.3d 592, 598 (6th Cir. 1994)). In

determining whether “the plaintiff has alleged a basis

for subject matter jurisdiction, . . . the court takes the

allegations of the complaint as true for purposes of

Rule 12(b)(1) analysis.” Id. “[T]he plaintiff bears the

burden of proving that jurisdiction exists.” DLX, Inc.

v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004).

Once a Court is satisfied that it has jurisdiction

to hear the merits of a case, Rule 12(b)(6) allows the

Court to make an assessment as to whether the

plaintiff has stated a claim upon which relief may be

granted. Under the Supreme Court’s articulation of

the Rule 12(b)(6) standard in Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 554-56 (2007), the Court must

construe the complaint in favor of the plaintiff, accept

the allegations of the complaint as true, and

determine whether plaintiff’s factual allegations

present plausible claims. A’[N]aked assertion[s]’

devoid of ‘further factual enhancement’” are

insufficient to “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Twombly, 550 U.S. at 557, 570). To survive a

Rule 12(b)(6) motion to dismiss, plaintiff’s pleading for

relief must provide “more than labels and conclusions,

and a formulaic recitation of the elements of a cause

of action will not do.” D=Ambrosio v. Marino, 747 F.3d

378, 383 (6th Cir. 2014) (quoting Twombly, 550 U.S.

at 555) (other citations omitted). Even though the

complaint need not contain “detailed” factual

allegations, its “factual allegations must be enough to

raise a right to relief above the speculative level on the

assumption that all the allegations in the complaint

are true.” New Albany Tractor, Inc. v. Louisville

Pet. App. 7

Tractor, Inc., 650 F.3d 1046, 1051 (6th Cir. 2011)

(citing Twombly, 550 U.S. at 555).

LAW AND ANALYSIS

I. Subject Matter Jurisdiction

Subject matter jurisdiction is a threshold issue

that the Court must address and resolve prior to

reaching the merits of a case. Steel Co. v. Citizens for

a Better Env't, 523 U.S. 83, 94-95 (1998); see also Fed.

R. Civ. P. 12(h)(3) (“If the court determines at any

time that it lacks subject-matter jurisdiction, the

court must dismiss the action”). The moving

defendants argue that the Court lacks subject matter

jurisdiction over plaintiff’s case under 28 U.S.C. §

1257(a) and the Rooker-Feldman doctrine. This

statute, as interpreted, provides an exception to

federal jurisdiction in “limited circumstances” where

there is a challenged state judgment involved in the

federal action, and an effort to overturn the judgment.

Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544

U.S. 280, 284, 287 & n.2, 293 (2005).

The exception to jurisdiction has been described

as applying to “cases brought by state-court losers

complaining of injuries caused by state-court

judgments rendered before district court proceedings

commenced and inviting district court review and

rejection of those judgments.” Id. at 291. Defendants

contend that the source of plaintiff’s alleged injury is

the Michigan Court of Appeals’ decision, and that

federal district courts do not have jurisdiction to

resolve an appeal of a state court’s final judgment. 28

U.S.C. § 1257(a); Hohenberg v. Shelby County, Tenn.,

Pet. App. 8

68 F.4th 336, 338 (6th Cir. 2023) (citing Rooker v. Fid.

Trust Co., 263 U.S. 413, 416 (1923); Dist. of Columbia

Court of Appeals v. Feldman, 460 U.S. 462, 482 & n.16

(1983).

The Court finds that the constitutional injuries

alleged by plaintiff are not a challenge to the prior

state judgment. The state court interpreted the 2020

amendment to determine whether terms served prior

to its enactment were intended to be counted toward

term limits. The court resolved that issue in favor of

counting all prior terms, thereby concluding that

plaintiff was ineligible to run for a fifth term. Buffa,

2023 WL 3046530 at * 5-6. The federal complaint

asserts that defendants’ application of the 2020

amendment’s term limits as to him, violates his

constitutional rights. Plaintiff’s federal lawsuit does

not ask, or require, the Court to “review and reject’ the

state court’s judgment. For the reasons discussed

further below, the Court finds that it has subject

matter jurisdiction over plaintiff’s complaint.

In determining whether the exception to

subject matter jurisdiction applies, it is often helpful

to look at the source of the injury alleged. Generally

speaking, “[i]f the source of the injury is that state

court decision, then the Rooker-Feldman doctrine

would prevent the district court from asserting

jurisdiction. If there is some other source of injury,

such as a third party's actions, then the plaintiff

asserts an independent claim.” McCormick v.

Braverman, 451 F.3d 382, 393 (6th Cir. 2006).

Plaintiff describes the source of his injury as

two actions taken by Council. The first is when it

proposed the 2020 amendment that would render a

person ineligible to hold the office of mayor after

Pet. App. 9

serving more than the greater of three complete terms

or twelve years in that office. Plaintiff alleges that

counting terms that began before the amendment was

enacted violates his constitutional rights. The second

source of plaintiff’s alleged injury is Council’s efforts

to enforce the term limits retroactively against him.

While the state court construed the same Charter

provision at issue in this case, it did so only to

interpret whether prior terms were intended to be

counted. And although plaintiff is not shy in opining

that the state court got the issue wrong, the decision

itself is not the source of plaintiff’s alleged injury.

It can also be helpful to look at the remedy

sought by plaintiff. See Hohenberg, 68 F.4th at 340

(where the relief ordered was the appointment of

receivers, the ordered sale of property and holding

claimants in contempt, the court held that “[d]amages

would not amount to ‘review and rejection’ of any of

the judgments binding the claimants.”). Plaintiff’s

request for a declaration that counting his terms

which commenced prior to the enactment of the 2020

amendment is a violation of his First and Fourteenth

Amendment rights, and for an award of money

damages, does not require “review and rejection” of

the state court judgment. Again, the correctness of the

prior judgment is not relevant to whether counting

plaintiff’s prior terms is a violation of his

constitutional rights. Plaintiff also requests that if he

prevails, this Court should order a special primary

election with his name on the ballot. This is a remedy

which would seem to conflict with the state court order

that his name not appear on the ballot. The Sixth

Circuit has addressed such situations by pointing out

that Section 1257(a) “applies only when a state-court

Pet. App. 10

loser seeks ‘review and rejection’ of a specific prior

judgment, not when his victory would undermine a

judgment's legal underpinnings.” Id., 68 F.4th at 341

(citing Exxon, 544 U.S. at 284).

The bottom line is that plaintiff is not asking

this court to review the state court judgment because

it was wrongly decided. His claim is that the term

limits, as applied to exclude him from being a

candidate for mayor, violate his federal constitutional

rights and he seeks redress for those violations. The

Court finds that it has subject matter jurisdiction over

plaintiff’s complaint.

II. Issue Preclusion

Defendants next maintain that plaintiff is

precluded from relitigating whether he should be

included as a candidate for mayor because that issue

was already determined by the Michigan Court of

Appeals. The elements of collateral estoppel, or issue

preclusion, are: “(1) ‘a question of fact essential to the

judgment must have been actually litigated and

determined by a valid and final judgment,’ (2) the

parties or privies “‘must have had a full [and fair]

opportunity to litigate the issue,’” and (3) “‘there must

be mutuality of estoppel.’” Mecosta County Med. Ctr.

v. Metro. Grp. Prop. & Cas. Ins. Co., 509 Mich. 276,

283 (2022) (citing Monat v. State Farm Ins. Co., 469

Mich. 679, 682-684 (2004)).

As to the first element, defendants contend that

the question of whether the 2020 mayoral term limit

amendment applies to plaintiff’s prior terms was

litigated and answered in the state case and was

essential to that court’s judgment. However, the state

Pet. App. 11

court was not asked, and did not address, the issue

before this court – whether counting plaintiff’s prior

terms to determine his eligibility as a candidate for

mayor violates his constitutional rights. The issues

this Court is being asked to decide were not

determined by the state court, so this is not a situation

where collateral estoppel applies.

Additionally, the second element requires that

the parties or their privies had a full and fair

opportunity to litigate the issue in the prior court.

Plaintiff was not a party in the state court action, but

defendants assert that he was in privity to Clerk Buffa

because their interests in placing plaintiff on the

ballot were identical. “To be in privity is to be so

identified in interest with another party that the first

litigant represents the same legal right that the later

litigant is trying to assert.” Adair v. State, 470 Mich.

105, 122 (2004). In state court, Buffa was advocating

as to the proper interpretation of the 2020 amendment

so she could execute her ministerial duties as Clerk.

Plaintiff’s constitutional claims were not represented

by any parties in the prior action. The Court finds that

collateral estoppel does not apply to preclude plaintiff

from stating a claim upon which relief can be granted

in this Court.

Satisfied that it has jurisdiction, the Court

turns its consideration to defendants’ motion to

dismiss plaintiff’s three constitutional counts for

failure to state a claim for relief.

III. Count I – First Amendment

Plaintiff’s First Amendment claim asserts that

his rights to free speech and association are being

Pet. App. 12

violated because the term limits in the 2020

amendment to the Charter are being applied to him

retroactively to keep him off the ballot for mayor. The

Court finds that there is no fundamental right to run

for office, and Warren has a rational basis for

imposing term limits for the office of mayor. For the

reasons more fully explained below, defendants’

motion to dismiss the First Amendment claim will be

granted.

Term limits are part of a state’s power “to

prescribe qualifications for its officeholders,” rather

than a “regulatory procedure relating to the election

process.” Citizens for Legislative Choice v. Miller, 144

F.3d 916, 924 (6th Cir. 1998). Along with a state’s

right to impose neutral candidacy qualifications such

as age or residence, term limits are another available

tool. Id. at 932-24; see also, Gregory v. Ashcroft, 501

U.S. 452, 472 (1991). The Sixth Circuit addressed

term limits in Michigan in a challenge brought by

state legislators. Distinguishing restrictions to voter

access, the court stated that term limits restrict

eligibility for office, and since candidates have no

constitutional right to run for office, found they are

constitutionally permissible:

This [term limit] qualification gives us

no reason to apply heightened scrutiny,

because candidates do not have a

fundamental right to run for office.

Clements v. Fashing, 457 U.S. 957, 963,

102 S.Ct. 2836, 73 L.Ed.2d 508 (1982)

(‘Far from recognizing candidacy as a

fundamental right, we have held that the

existence of barriers to a candidate's

Pet. App. 13

access to the ballot does not of itself

compel close scrutiny.’ (cleaned up));

Zielasko v. Ohio, 873 F.2d 957, 959 (6th

Cir. 1989) (‘Running for office is not a

fundamental right.’ (cleaned up)).

Without such a fundamental right at

issue, we revert to the baseline: rational

basis.

Kowall v. Benson, 18 F.4th 542, 547–48

(6th Cir. 2021).

Plaintiff contends he is not challenging the

constitutionality of term limits in general, but only as

applied retroactively to himself. He argues that his

First Amendment rights are implicated because “[h]is

right to support a candidate of his choice – including

himself – cannot be arbitrarily restricted.” ECF No.

18, PageID.148 (citing Mogk v. City of Detroit, 335

F.Supp. 698, 700 (E.D. Mich. 1971). In Mogk, the

federal district court reviewed a challenge to the

three-year residency requirement for candidates for

the City of Detroit Charter Commission. The court

determined that the requirement did not pass either

the rational basis test or the more strenuous and factintensive compelling state interest test applied in

ballot-access cases. Id. at 700-701. After Mogk was

decided, the Supreme Court has made clear that

candidate qualification cases are not subject to the

same First Amendment protections as voter

qualification cases. “Far from recognizing candidacy

as a ‘fundamental right,’ we have held that the

existence of barriers to a candidate's access to the

ballot ‘does not of itself compel close scrutiny.’”

Pet. App. 14

Clements v. Fashing, 457 U.S. 957, 963 (1982).

Therefore, rational basis review applies to plaintiff’s

First Amendment challenge.

Addressing the argument that candidates have

the right to vote for themselves, as the candidate of

their choice, the Sixth Circuit held: “Just as

candidates have no fundamental right to run for office,

voters have no fundamental right to ‘vote for a specific

candidate or even a particular class of candidates.’”

Kowal, 18 F.4th at 549. In the absence of a

fundamental right, “their voter claims fail on rationalbasis review …” Id.

Plaintiff’s final argument is that there is no

rational basis for changing his term limit from three

terms to five terms, and then back to three terms.

However, in resolving to submit a ballot question to

the voters in 2020 to amend the Charter to limit the

mayor’s term, the Council noted “that a governmental

system with a balanced distribution of power would be

served best by equal term limits for all elected

officials.” See, Buffa, 2023 WL 3046530, at *2. The

2020 amendment did just that, applying the same

“greater of three (3) complete terms or twelve (12)

years in that office” eligibility requirement to

candidates for the office of mayor, city council, city

clerk and city treasurer.

To the extent that plaintiff argues the Council

misapplied state law in counting the terms he served

prior to passage of the 2020 amendment, the Michigan

Court of Appeals and the Michigan Supreme Court

have issued a final judgment on that issue. As

discussed in Section I above, this Court does not have

subject matter jurisdiction to review a challenge to a

final state court judgment under 28 U.S.C. § 1257(a).

Pet. App. 15

The Court finds that the term limits at issue, as

applied to plaintiff, are rationally related to their

stated goal of achieving a balanced distribution of

power among elected officials. Therefore, plaintiff fails

to state a claim for which relief can be granted under

the First Amendment.

IV. Count II – Fourteenth Amendment Due Process

Plaintiff’s due process argument is that

counting his terms served prior to the 2020

amendment to determine him ineligible to run for

mayor, denies plaintiff of a vested property interest

without due process of law. However, because there is

no vested property interest in being a candidate for

political office, the Court grants defendants’ motion to

dismiss this claim.

To assert a procedural due process claim, a

plaintiff must show that he was deprived “of a

protected property interest without ‘adequate

predeprivation procedural rights.’” Sterling Hotels,

LLC v. McKay, 71 F.4th 463, 467 (6th Cir. 2023)

(citing Cahoo v. SAS Analytics Inc., 912 F.3d 887, 900

(6th Cir. 2019)). To qualify as a protected property

interest, a person must have “more than a unilateral

expectation of it. He must, instead, have a legitimate

claim of entitlement to it.” Hasanaj v. Detroit Pub.

Sch. Cmty. Dist., 35 F.4th 437, 447 (6th Cir. 2022).

“The U.S. Constitution does not create property

interests. To warrant protection, the state law must

create a legitimate entitlement to a benefit or a

justifiable expectation of receiving it.” Williams v. City

of Detroit, Michigan, 54 F.4th 895, 899 (6th Cir. 2022)

(citation omitted). To receive protection under the Due

Pet. App. 16

Process Clause, “a property interest must be a vested

right.” Detroit v. Walker, 445 Mich. 682, 698–699

(1994). This requires something “more than a mere

expectation based on an anticipated continuance of

the present laws.” Gillette Commercial Operations

North Am. & Subsidiaries v. Dep't of Treasury, 312

Mich. App. 394, 878 N.W.2d 891, 909 (2015).

Unfortunately for plaintiff, neither Michigan

nor federal law recognizes a vested property interest

in being a candidate or in holding public office. See,

People v. Smith, 502 Mich. 624, 638 (Mich. 2018) (“the

law has long been clear that there is no property

interest in holding public office.”); Taylor v. Beckham,

178 U.S. 548, 576 (1900); Snowden v. Hughes, 321

U.S. 1, 7 (1944); Burks v. Perk, 470 F.2d 163, 165 (6th

Cir. 1972); Houchens v. Beshear, 850 F. App'x 340, 343

(6th Cir. 2021). Plaintiff maintains that he

nevertheless has a vested right to run for office

because he was “already legally certified to be on the

ballot by the clerk Defendants.” ECF No. 18,

PageID.150. However, the Michigan Court of Appeals

found that was an unauthorized act and ordered

plaintiff’s name removed from the ballot. Michigan

courts have long held unauthorized acts do not give

rise to a vested right. See, e.g., Fass v. City of

Highland Park, 326 Mich. 19, 31 (1949) (“Such acts

being unauthorized and in express contravention of

ordinance provisions of the city, plaintiffs acquired no

vested right to use their property for a purpose

forbidden by law.”).

Plaintiff next asserts that counting his terms

served before the 2020 amendment was enacted

attaches a new “legal disability” to him because it

prevents him from running based on his prior terms

Pet. App. 17

served. Complaint, ¶ 75 (“Plaintiff’s disqualification

from both the candidacy and the office of the Mayor of

the City of Warren indisputably constitutes a legal

disability.”); Complaint ¶ 93 (“Plaintiff has a right

under the Fifth Amendment of the United States

constitution to not suffer retroactive legal disabilities

arising out of past considerations.”). This argument

does not save plaintiff’s due process claim. First, the

Michigan Court of Appeals held that the term limit

provision applied to plaintiff prospectively, as opposed

to retrospectively. Buffa, 2023 WL 3046530, at *11

(“Additionally, a prospective application of the charter

is applied here, and its reliance on antecedent events

does not run afoul of the general rule against

retroactivity.”). Second, plaintiff does not cite any case

law, nor is the Court aware of any, that recognizes the

inability to be a candidate for elected office as a legal

disability that entitles a person to due process.

Without a vested property interest at stake,

there can be no procedural due process violation.

Plaintiff’s due process claim fails as a matter of law.

V. Count III – Fourteenth Amendment Equal

Application of the Laws

Plaintiff’s final constitutional claim is that he is

being denied equal application of the laws in violation

of the Fourteenth Amendment’s Equal Protection

Clause. Because plaintiff cannot show that the term

limits are applied to him differently than they are

applied to others who are similarly situated, he fails

to state a claim for which relief can be granted.

The Fourteenth Amendment's guarantee of the

“equal protection of the laws” bars governmental

Pet. App. 18

discrimination that either (1) burdens a fundamental

right, (2) targets a suspect class, or (3) intentionally

treats one differently from others similarly situated

with no rational basis for the difference. Green Genie,

Inc. v. City of Detroit, Michigan, 63 F.4th 521, 527 (6th

Cir. 2023). There is not a fundamental right to run for

public office, and plaintiff has not alleged that

proposal 2020 targets a suspect class. Therefore, to

prevail

on

his

allegation

of

government

discrimination, plaintiff must show that (1) the City

“intentionally treated” him “differently from others

similarly situated” and (2) “there is no rational basis

for the difference in treatment.” Id. at 527 (quoting

Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000)).

Plaintiff

contends

that

the

Council

discriminated against him by designing the 2020

amendment to bar his eligibility for re-election, while

it does not bar any of the other Warren elected

officials. “To be ‘similarly

situated’ for purposes of an equal-protection claim, the

plaintiff and the comparator must be alike ‘in all

relevant respects.’” Reform Am. v. City of Detroit,

Michigan, 37 F.4th 1138, 1152 (6th Cir.), cert. denied,

143 S. Ct. 448 (2022) (citation omitted). The 2020

amendment applies only to the mayor’s office and was

intended to bring term limits for mayor in line with

those for other elected officials. Plaintiff does not

identify any other person in his position who has been

allowed to be on the ballot. Because no other

candidates for mayor, or any elected office in Warren,

have served the maximum time in office, plaintiff

cannot demonstrate that anyone “similarly situated”

was treated differently.

Pet. App. 19

Plaintiff, who is currently serving his fourth

term as mayor, is not similarly situated to other

candidates who have not already served at least three

completed terms in office. In addition, the term limits

provision at issue is rationally related to legitimate

governmental interests. For these reasons, plaintiff’s

Fourteenth Amendment equal protection claim fails.

VI. Count IV – Declaratory Judgment

Plaintiff’s fourth count alleges a claim for

declaratory judgment. However, plaintiff fails to

demonstrate an “actual injury traceable to the

defendant[s] [that is] likely to be redressed by a

favorable judicial decision[]”, therefore he is not

entitled to declaratory judgment as a remedy. See,

Keene Group Inc. v. City of Cincinnati, Ohio, 998 F.3d

306, 310 (6th Cir. 2021) (construing count for

declaratory judgment as a requested remedy and

dismissing that count after finding no constitutional

violations occurred). Count IV will therefore be

dismissed.

VII. Purcell Doctrine and Laches

Having concluded that plaintiff fails to state

any claim for which relief can be granted, the Court

need not address defendants’ argument that plaintiff’s

lawsuit is untimely and that his request for injunctive

relief is barred by the Purcell principle and/or laches.

VIII. Qualified Immunity of Clerks

Pet. App. 20

Defendant clerks assert qualified immunity as to

plaintiff’s claims for monetary damages. “Qualified

immunity is an affirmative defense” to a §1983 claim.

English v. Dyke, 23 F.3d 1086, 1089 (6th Cir. 1994).

Because the Court finds that plaintiff has failed to

state a constitutional claim for which relief may be

granted, and that the case shall be dismissed, there is

no claim to which the affirmative defense of qualified

immunity can be asserted.

CONCLUSION

Now, therefore, for the reasons stated in this

opinion and order,

IT IS HEREBY ORDERED that Warren City

Council’s motion to dismiss (ECF No. 10) is

GRANTED.

IT IS HEREBY FURTHER ORDERED that

Anthony Forlini’s motion to dismiss (ECF No. 12) is

GRANTED.

IT IS HEREBY FURTHER ORDERED that

James Fout’s motion for expedited review (ECF No. 8)

is DENIED as moot.

IT IS HEREBY FURTHER ORDERED that

plaintiff’s complaint shall be DISMISSED in its

entirety.

It is so ordered.

Dated: September 5, 2023

s/George Caram Steeh

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

Pet. App. 21

______________

APPENDIX B

______________

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 24a0072p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

_________________

JAMES R. FOUTS,

Plaintiff-Appellant,

No. 23-1826

v.

WARREN CITY COUNCIL;

SONJA BUFFA; ANTHONY

FORLINI; CITY OF

WARREN ELECTION

COMMISSION,

Defendants-Appellees.

Appeal from the United States District Court for the

Eastern District of Michigan at Detroit.

No. 2:23-cv-11868—George Caram Steeh III, District

Judge.

Decided and Filed: April 2, 2024

Pet. App. 22

Before: CLAY, McKEAGUE, and NALBANDIAN,

Circuit Judges.

_________________

COUNSEL

ON BRIEF: Nabih H. Ayad, AYAD LAW, PLLC,

Detroit, Michigan, for Appellant. Mary Massaron,

PLUNKETT COONEY, Bloomfield Hills, Michigan,

for Appellee Warren City Council. Mary Michaels,

CITY OF WARREN, Warren, Michigan, for Appellees

Sonja Buffa and City of Warren Election Commission.

Frank Krycia, MACOMB COUNTY, Mount Clemens,

Michigan, for Appellee Anthony Forlini.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiff James R. Fouts,

the former mayor of Warren, Michigan, appeals the

district court’s dismissal of his complaint against

Defendants Warren City Council, Warren City

Election Commission, Anthony G. Forlini, in his

capacity as the Macomb County Clerk, and Sonja D.

Buffa, in her capacity as the Warren City Clerk. Fouts

brought claims under 42 U.S.C. § 1983, alleging that

Defendants violated his First, Fifth, and Fourteenth

Amendment rights by retroactively applying a new

term-limit provision to bar him from running for a

fifth term as Warren’s mayor. For the reasons set

forth below, we AFFIRM the district court’s dismissal

of Fouts’ complaint.

Pet. App. 23

I. BACKGROUND

At the time of his complaint, Fouts was serving

his fourth term as mayor of Warren, Michigan, having

been in office since 2007. In 2020, Warren voters

passed an amendment to Warren’s city charter that

shortened the existing term limits for mayor and

brought mayoral term limits in line with term limits

for other City offices. Specifically, the amended

charter provides that “[a] person shall not be eligible

to hold the position of mayor, city council, city clerk or

city treasurer for more than the greater of three (3)

complete terms or twelve (12) years in that office.”

Warren City Charter, § 4.3(d). Despite the new

charter amendment, Fouts initiated the process of

placing his name on the ballot to run for a fifth term

as mayor in the 2023 election.

In February 2023, the Warren City Council

(“City Council”) filed a complaint in Michigan’s circuit

court, seeking to compel Buffa and the Warren City

Election Commission (“Election Commission”) to

remove Fouts’ name from the 2023 mayoral ballot. See

Warren City Council v. Buffa, No. 2023-000611-AW,

2023 WL 3766706, at *1 (Mich. Cir. Ct. Mar. 23, 2023)

rev’d No. 365488, 2023 WL 3046530, at *11 (Mich. Ct.

App. Apr. 21, 2023). The Michigan trial court held that

Fouts could run for mayor of Warren in 2023. Warren

City Council, 2023 WL 3766706, at *5–6. It found that

the charter amendment did not clearly intend to

include Fouts’ prior terms as mayor in assessing

whether the new three-term limit barred him from

office. Id. The Michigan Court of Appeals reversed,

ordering Buffa and the Election Commission to

Pet. App. 24

disqualify Fouts from the 2023 mayoral race. See

Warren City Council, 2023 WL 3046530, at *11. The

Court of Appeals found that the plain language of the

charter amendment meant that Fouts’ prior terms

counted in calculating whether he had exceeded the

new three-term limit. Id. at *5. The Michigan

Supreme Court declined to hear the case. Warren City

Council v. Buffa, 989 N.W.2d 679 (Mich. 2023) (mem.).

In August 2023, Fouts filed the instant case in

federal court. He brought claims under 42 U.S.C. §

1983, alleging that Defendants violated his First

Amendment rights to free expression and association,

his Fifth Amendment right to due process of law,2 and

his Fourteenth Amendment right to equal protection

under the law. He sought declaratory relief and

monetary damages, and requested that the district

court decertify the results of the 2023 mayoral

primary election and order a special election that

would include Fouts on the 2023 ballot. The City

Council and Forlini each moved to dismiss Fouts’

complaint pursuant to Rules 12(b)(1) and 12(b)(6) of

the Federal Rules of Civil Procedure. 3 The district

court found that it had subject matter jurisdiction

over Fouts’ complaint, but dismissed the complaint in

Although Fouts’ complaint alleges a violation of his Fifth Amendment

right to due process, as the district court properly noted, he only alleges

unlawful actions by the state of Michigan, bringing his claims under the

protections of the Fourteenth, rather than the Fifth, Amendment. See Scott

v. Clay County, 205 F.3d 867, 873 n.8 (6th Cir. 2000). Accordingly, we

analyze his due process challenge under the Fourteenth Amendment.

3

Defendants Buffa and the Election Commission filed an answer in which

they described their role in this litigation as “merely procedural in nature

for purposes of expedient execution of a Court order.” Answer, R. 23, Page

ID #208.

2

Pet. App. 25

its entirety because it failed to state a claim upon

which relief could be granted.

Specifically, the district court rejected

Defendants’ arguments that Fouts’ complaint

amounted to an attempt to overturn the state court’s

judgment, which, if true, would deprive the district

court of subject matter jurisdiction. See 28 U.S.C. §

1257; Rooker v. Fid. Trust Co., 263 U.S. 413, 416

(1923); D. C. Ct. of Appeals v. Feldman, 460 U.S. 462,

476 (1983). The so-called Rooker-Feldman doctrine

only applies in the “limited circumstances” when

“state-court losers” bring actions in federal court

“complaining of injuries caused by state-court

judgments” and “inviting district court review and

rejection of those judgments.” Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284, 291

(2005). In this case, the district court correctly found

that Fouts’ constitutional challenge to the purportedly

retroactive application of the term-limit amendment

did not require it to review and reject the state court

judgment. Although Fouts’ complaint, at points, took

issue with the Michigan Court of Appeals’ decision, as

the district court correctly noted, the ultimate source

of Fouts’ injury in this federal action was not the state

court judgment, but Defendants’ initial proposal of the

term-limit amendment and subsequent application of

the term-limit amendment to include Fouts’ prior

terms as mayor. Because this constitutional challenge

would not require a review or a rejection of the state

court’s judgment interpreting the term-limit

amendment, the district court correctly applied the

Rooker-Feldman doctrine and found that it did not bar

jurisdiction over Fouts’ claims.

Pet. App. 26

Fouts timely appealed the district court’s

judgment, and asked this Court for expedited review

of this appeal. We entered an order on October 4, 2023,

denying Fouts’ request for expedited review because

Fouts had unreasonably delayed filing his federal

lawsuit and because he was unlikely to succeed on the

merits of his appeal. We now fully consider the merits

of Fouts’ appeal, having the benefit of full briefing

from the parties. Defendants urge us to uphold the

district court’s dismissal of Fouts’ complaint on the

merits, and alternatively argue that we should affirm

the district court’s dismissal of Fouts’ complaint based

on the principle “that lower federal courts should

ordinarily not alter the election rules on the eve of an

election.” Republican Nat’l Comm. v. Democratic Nat’l

Comm., 589 U.S. 423, 424 (2020).

II. DISCUSSION

A. Standard of Review

We review de novo the district court’s dismissal

of a complaint for its failure to state a claim. Majestic

Bldg. Maint., Inc. v. Huntington Bancshares Inc., 864

F.3d 455, 458 (6th Cir. 2017). We accept all of the

complaint’s factual allegations as true and determine

whether these facts sufficiently state a plausible claim

for relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555–56 (2007).

B. Analysis

1. Mootness

Pet. App. 27

Because Fouts requests relief tied in part to the

2023 Warren mayoral race—an election that has come

and gone—we first consider whether his appeal is

moot. Although no party raised this question, we

must assure ourselves of our own jurisdiction to hear

a case, and, accordingly, may raise the question of

mootness sua sponte. Berger v. Cuyahoga Cnty. Bar

Ass’n, 983 F.2d 718, 721 (6th Cir. 1993). A case may

become moot at any stage of litigation “when the

issues presented are no longer ‘live’ or the parties lack

a legally cognizable interest in the outcome.”

Graveline v. Benson, 992 F.3d 524, 533 (6th Cir. 2021)

(quoting Powell v. McCormack, 395 U.S. 486, 496

(1969)).

In this case, even if Fouts’ prospective relief has

been mooted by the occurrence of the 2023 mayoral

election, Fouts’ request for monetary damages

ensures our jurisdiction. A request for monetary

damages may continue to present a live controversy,

even when a plaintiff’s claim for prospective relief is

mooted. See Blau v. Fort Thomas Pub. Sch. Dist., 401

F.3d 381, 387 (6th Cir. 2005) (“[T]he existence of a

damages claim ensures that this dispute is a live one

and one over which Article III gives us continuing

authority.”).

Given our jurisdiction based on Fouts’ request

for monetary damages, we need not decide whether

his requests for prospective relief are moot. We note,

however, that his claim for injunctive relief—which

requested that he be permitted to run as a candidate

in the 2023 Warren mayoral election—is likely mooted

by the occurrence of that election. See Lawrence v.

Blackwell, 430 F.3d 368, 371 (6th Cir. 2005).

Nevertheless, Fouts’ request for declaratory relief

Pet. App. 28

likely remains live by virtue of an exception to

mootness for disputes capable of repetition yet

evading review. “This exception applies when ‘(1) the

challenged action was in its duration too short to be

fully litigated prior to its cessation or expiration, and

(2) there was a reasonable expectation that the same

complaining party would be subjected to the same

action again.’” Id. (quoting Weinstein v. Bradford, 423

U.S. 147, 149 (1975)). Election disputes readily meet

the first prong of this test as, generally, “litigation has

only a few months before the remedy sought is

rendered impossible by the occurrence of the relevant

election.” Id. The second prong is satisfied if the

controversy is “capable of repetition” not whether “a

recurrence of the dispute [is] more probable than not.”

Honig v. Doe, 484 U.S. 305, 319 n.6 (1988) (emphasis

in original). In this case, Fouts seeks a declaratory

judgment that Defendants’ decision to apply the termlimit amendment to include his prior terms served as

Warren mayor violates his constitutional rights.

Although the 2023 Warren mayoral election has

passed, and although Fouts has not explicitly

indicated in his complaint that he seeks to run for a

fifth term as mayor in a future election, such an

explicit statement is not necessary to show that it is

“reasonable to expect that he will do so.” Lawrence,

430 F.3d at 371. Because the term-limit amendment

remains valid and applicable to Fouts, and because it

is reasonable to believe that he will seek to run for a

fifth term in the future if permitted, Fouts’ request for

declaratory relief likely continues to present a live

case or controversy over which we have jurisdiction.

2. First Amendment

Pet. App. 29

Fouts first argues that Defendants violated his

First Amendment rights to free expression and

association by applying the charter amendment to

him retroactively and preventing him from running

for a fifth term as mayor. A potential candidate for

office may bring a challenge to a state term-limit law

under the First Amendment, which is made applicable

to the states through the Fourteenth Amendment.

See Kowall v. Benson, 18 F.4th 542, 546–47 (6th Cir.

2021).

Fouts argues that we must apply the slidingscale framework described in Anderson v. Celebrezze,

460 U.S. 780 (1983), and Burdick v. Takushi, 504 U.S.

428 (1992), to evaluate his First and Fourteenth

Amendment claim. The Anderson-Burdick framework

is typically the appropriate test “[w]hen deciding

whether state election laws violate a plaintiff’s

associational rights and the right to vote effectively

under the First and Fourteenth Amendments.”

Graveline, 992 F.3d at 534. A court using this sliding

scale approach applies varying levels of scrutiny to

state election laws depending on the severity of the

burden on an individual’s constitutional rights. See

Green Party of Tenn. v. Hargett, 791 F.3d 684, 693 (6th

Cir. 2015).

However, we have held that the AndersonBurdick framework is “inapposite” when a plaintiff

brings a challenge to a term-limit law. Kowall, 18

F.4th at 547. This is because term-limit laws define a

candidate’s eligibility for office, whereas “prototypical

ballot-access or freedom-of-association case[s]”

challenge laws that “keep[] eligible candidates off the

ballot” or otherwise limit voters from casting their

Pet. App. 30

votes for eligible candidates. Id. These cases are

subjected to Anderson-Burdick’s sliding scale

framework because they burden fundamental rights,

such as the right of eligible voters to cast their votes

effectively. See Anderson, 460 U.S. at 787. By

contrast, term-limit laws, which only restrict the class

of individuals eligible to run for office, do not burden

a fundamental right because there is no fundamental

right to run for office. See Kowall, 18 F.4th at 547; see

also Clements v. Fashing, 457 U.S. 957, 963 (1982)

(“Far from recognizing candidacy as a ‘fundamental

right,’ we have held that the existence of barriers to a

candidate’s access to the ballot ‘does not of itself

compel close scrutiny.’”) (quoting Bullock v. Carter,

405 U.S. 134, 143 (1972)). Accordingly, challenges to

term-limit laws receive rational basis review. See

Kowall, 18 F.4th at 548.

Fouts argues that his claim mirrors ballotaccess challenges that receive heighted scrutiny

because we have held that “[f]or ballot-access cases,”

the “hallmark of a severe burden is exclusion or

virtual exclusion from the ballot.” Graveline, 992 F.3d

at 543 (quoting Libertarian Party of Ky. v. Grimes, 835

F.3d 570, 574 (6th Cir. 2016)). Because the term-limit

amendment excludes Fouts from the ballot, he claims

that a higher level of scrutiny applies to his challenge.

This argument is foreclosed by our precedent. See

Kowall, 18 F.4th at 547–48. Ballot-access cases

address the constitutionality of barriers for otherwise

qualified candidates to be placed on the ballot, such as

candidate signature requirements or early filing

deadlines that disproportionately impact minor

political parties. See, e.g., Graveline, 992 F.3d at 536–

37. By contrast, term-limit laws “operate

Pet. App. 31

independently from ballot-access restrictions” because

“they limit which individuals are eligible to hold

office.” Kowall, 18 F.4th at 547. However Fouts may

phrase his argument, it does not change the fact that

he has not challenged a law restricting his

fundamental rights.

Fouts further argues that the AndersonBurdick framework applies in this case because he

brings an as-applied challenge to the charter

amendment’s purportedly retroactive application to

him, which he claims creates a meaningful difference

between his challenge and a facial challenge to a termlimit law applied prospectively. But bringing an asapplied challenge does not change the level of scrutiny

applicable to the charter amendment because Fouts

still cannot show that he has a fundamental right to

run for office. See Kowall, 18 F.4th at 547. With no

fundamental right allegedly impaired, we must resort

to rational basis review. Id. at 548. Moreover, his

challenge to the purportedly retroactive application of

the term-limit provision also does not raise the level

of applicable scrutiny. For the reasons discussed

below, the application of the term-limit amendment to

bar Fouts from a fifth term in office does not, in fact,

constitute a retroactive application. But even if it did,

while this could create a due process or other

constitutional concern, retroactive application does

not provide a basis for heightened scrutiny of his First

Amendment claim. See Lindenbaum v. Realgy, LLC,

13 F.4th 524, 530 (6th Cir. 2021) (finding that the

hypothetically retroactive application of a judicial

decision to a party did not “create a First Amendment

problem” because “the centuries-old rule that the

government cannot subject someone to punishment

Pet. App. 32

without fair notice is not tied to speech”). Instead,

because the term-limit amendment does not burden

Fouts’ fundamental rights, review of his as-applied

challenge is subject to rational basis review.

Fouts must thus show that the term-limit

amendment, as applied to him, has no rational

relationship to any legitimate government interest.

See Kowall, 18 F.4th at 548. In general, under rational

basis review, a defendant “has no obligation to

produce evidence to sustain the rationality of its

actions; its choice is presumptively valid and ‘may be

based on rational speculation unsupported by

evidence or empirical data.’” Club Italia Soccer &

Sports Org. v. Charter Twp. of Shelby, 470 F.3d 286,

298 (6th Cir. 2006), overruled on other grounds as

recognized by Davis v. Prison Health Servs., 679 F.3d

433, 442 n.3 (6th Cir. 2012) (quotation omitted).

However, in this case, the City Council explicitly

stated its legitimate interests in proposing the termlimit amendment. Specifically, in the resolution

adopting the ballot proposal later submitted to

Warren voters, it stated that “[a] governmental

system with an equally balanced distribution of power

and effective system of checks and balances would be

best served by having equal term limits for all elected

city offices.” Warren City Council Resolution (June

30,

2020),

https://library.municode.com/mi/warren/ordinances/c

ode_of_ordinances?nodeId=1054927. This provides a

rational basis for the term-limit amendment. See

Kowall, 18 F.4th at 548.

A plaintiff may show that a government action

lacks a rational basis by either negating “every

conceivable basis which might support the

Pet. App. 33

government action” or “by showing that the

challenged action was motivated by animus or illwill.” Cahoo v. SAS Analytics Inc., 912 F.3d 887, 905

(6th Cir. 2019) (quoting TriHealth, Inc. v. Bd. of

Comm’rs, Hamilton Cnty., 430 F.3d 783, 788 (6th Cir.

2005)). Fouts argues that the amendment lacks a

rational basis because it only limits individuals from

holding office who have served three “complete”

terms, which he contends suggests that office holders

could resign a day before the completion of their terms

and run for an endless number of terms. Warren City

Charter, § 4.3(d). Fouts argues that, in effect, the

term-limit amendment then only limits him from

serving another term because he has already

completed a full three terms in office. But the highly

speculative scenario that Warren office holders would

evade the term-limit amendment’s restrictions by

resigning early does not meet Fouts’ burden to negate

“every conceivable basis which might support the

government action.” Cahoo, 912 F.3d at 905. In fact, it

does not even negate the express basis for the

Council’s proposed ballot amendment; no matter how

ineffective the term-limit amendment is, it would

nevertheless still create “equal term limits for all

elected city offices.” Warren City Council Resolution

(June 30, 2020). Moreover, we have found term-limit

laws supported by other legitimate interests, such as

a state’s interest in structuring its own government,

reducing political careerism, and checking special

interests’ impact on elections. Kowall, 18 F.4th at 548.

None of these interests have any less force in this case

because of Fouts’ remote, hypothetical scenario.

Furthermore, Fouts has not sufficiently alleged

that the term-limit language was motivated by any

Pet. App. 34

“animus or ill-will” that could support a finding of

irrationality. Cahoo, 912 F.3d at 905. Although Fouts

alleged that City Council members drafted the termlimit amendment with a purported “loophole” to

permit them to run for office in perpetuity, this

allegation does not convey any animus or ill-will

directed at Fouts himself. Compl., R. 1, Page ID #11.

Because the term-limit amendment was supported by

multiple legitimate interests, and because Fouts has

not negated the rationality of the amendment in any

way, he cannot succeed on his First and Fourteenth

Amendment challenge.

3. Due Process

Fouts also argues that the purported

retroactive application of the term-limit amendment

to him violates the Fourteenth Amendment’s Due

Process Clause.

Although “[t]he Due Process

Clause . . . protects the interests in fair notice and

repose that may be compromised by retroactive

legislation,” the term-limit amendment did not violate

Fouts’ due process rights because it does not operate

retroactively and does not deprive him of any property

or liberty interest protected by the Due Process

Clause. Landgraf v. USI Film Prods., 511 U.S. 244,

266 (1994).

“A statute does not operate ‘retrospectively’

merely because it is applied in a case arising from

conduct antedating the statute’s enactment, or upsets

expectations based in prior law.” Id. at 269 (citation

omitted). Similarly, “a statute ‘is not made retroactive

merely because it draws upon antecedent facts for its

operation.’” Id. at 269 n.24 (quoting Cox v. Hart, 260

Pet. App. 35

U.S. 427, 435 (1922)). Instead, courts “must ask

whether the new provision attaches new legal

consequences to events completed before its

enactment,” that is, “whether it would impair rights a

party possessed when he acted, increase a party’s

liability for past conduct, or impose new duties with

respect to transactions already completed.” Id. at

269–70, 280. Including Fouts’ prior terms as mayor

when calculating his eligibility under the term-limit

amendment does not apply the amendment

retroactively

under

this

understanding

of

retroactivity. Certainly, applying the amendment in

this way draws on past actions by Fouts—his prior

terms—to assess the term-limit amendment’s

applicability to him. But it impairs no rights that

Fouts had before enactment because Fouts never had

a right to run for mayor of Warren. See Kowall, 18

F.4th at 547. And it imposes no new liabilities or

duties on Fouts because it merely requires him to

refrain from serving as mayor, rather than requiring

any affirmative act on his part. Instead, the termlimit law only prospectively prohibits Fouts from

running for a fifth term “because it draws upon

antecedent facts for its operation.” Landgraf, 511 U.S.

at 269 n.24. Merely considering these prior terms

does not make the amendment apply retroactively.

On appeal, Fouts argues that the new termlimit amendment imposes a legal disability on him

based on his past conduct, which, if true, could make

the amendment apply retroactively. See id. at 269.

But Fouts’ inability to run for a fifth term as mayor

does not impose any new legal disability because,

again, he has no legally cognizable right to run for

mayor of Warren. None of Fouts’ cited cases change

Pet. App. 36

this conclusion. Instead, they all discuss the loss of

certain liberties by felons after incarceration, and

merely refer to holding public office as a “civil right”

or refer to the loss of the right to possess a firearm or

ammunition as a “legal disability.” See, e.g., Hampton

v. United States, 191 F.3d 695, 699 (6th Cir. 1999);

United States v. Young, 766 F.3d 621, 623 (6th Cir.

2014). These cases are inapplicable to the question

presented in this case because none of them suggest

that Fouts’ inability to run for office creates a legal

disability. Because the term-limit amendment applies

no new obligations to Fouts and deprives him of no

existing rights based on his past conduct, it does not

apply retroactively merely by using his past conduct

to determine his current eligibility for office.

Further, even assuming that the amendment

applied retroactively, this retroactive application does

not violate due process. Although Fouts does not

specify whether he brings a procedural or substantive

due process challenge, under either formulation, he

must show a deprivation of a property or liberty

interest by government action—in this case, the

purportedly retroactive application of the term-limit

law to him. EJS Props., LLC v. City of Toledo, 698

F.3d 845, 855 (6th Cir. 2012). Property interests are

not defined by the federal Constitution, but are

instead created “by existing rules or understandings

that stem from an independent source such as state

law.” Puckett v. Lexington-Fayette Urb. Cnty. Gov’t,

833 F.3d 590, 605 (6th Cir. 2016) (quoting Ziss Bros.

Constr. Co., v. City of Independence, 439 F. App’x. 467,

471 (6th Cir. 2011)). Longstanding Michigan and

federal law confirm that there is no property interest

in holding public office. See Taylor v. Beckham, 178

Pet. App. 37

U.S. 548, 576 (1900) (“The view that public office is not

property has been generally entertained in this

country.”); People v. Smith, 918 N.W.2d 718, 726

(Mich. 2018) (“[T]he law has long been clear that there

is no property interest in holding public office.”).

Moreover, Fouts cites no authority for the proposition

that he has a liberty interest in running for or holding

public office. Given our prior holding that running for

public office does not constitute a fundamental right

under the Constitution, Fouts similarly has no liberty

interest impacted by the term-limit amendment. See

Kowall, 18 F.4th at 547.

On appeal, Fouts does not claim to have a

property or liberty interest in holding public office,

but, instead, claims that he does not need to make

such a showing to succeed on his due process claim.

But, in support, he only cites the Supreme Court’s

decision in Landgraf, which addressed the canon of

statutory interpretation known as the presumption

against retroactivity. 511 U.S. at 286. In Landgraf,

the Supreme Court found that the presumption

against retroactivity could conceivably apply to

certain procedural rules because it was not limited to

cases only involving a deprivation or impairment of

“vested rights.” Id. at 275 n.29. From this statement,

Fouts takes the rule that he need not show a

deprivation of a constitutionally protected interest to

succeed on his due process challenge. Although the

presumption against retroactivity discussed in

Landgraf has its roots in the Due Process Clause,

Landgraf only addressed a rule of statutory

construction, not constitutional interpretation. See id.

at 266. It did not alter the fundamental showing that

a party must make to support a due process challenge:

Pet. App. 38

a deprivation of a constitutionally protected interest.

Because the term-limit law does not deprive Fouts of

any property or liberty interest, even if it could be

understood to apply retroactively, it does not violate

the Due Process Clause.4

4. Equal Protection

Finally, Fouts claims that the term-limit law as

applied to him violates the Fourteenth Amendment’s

Equal Protection Clause.

The Equal Protection

Clause prohibits “governmental discrimination that

either (1) burdens a fundamental right, (2) targets a

suspect class, or (3) intentionally treats one

differently from others similarly situated without any

rational basis for the difference.” Green Genie, Inc. v.

City of Detroit, 63 F.4th 521, 527 (6th Cir. 2023). As

stated, the term-limit amendment did not burden

Fouts’ fundamental rights. Nor does Fouts contend

that it targeted a suspect class of citizens. Instead, he

argues a “class of one” theory, requiring him to allege

that he was “intentionally treated differently from

4

On appeal, Fouts argues that the district court improperly failed to

consider his argument that the term-limit amendment’s purportedly

retroactive application violated the federal Constitution. But the district

court explicitly considered Fouts’ due process challenge, and correctly

rejected it because he did not show that he had a constitutionally protected

interest in running for office. What Fouts appears to be contesting instead

is the district court’s refusal to review the Michigan state court’s separate

conclusion that the text of the term-limit law included Fouts’ prior terms.

But the district court did not err in concluding that it lacked authority to

review any of Fouts’ arguments that amounted to a disagreement with how

the Michigan state court interpreted the term-limit amendment under

Michigan law. Any review of such a claim would constitute an improper

review of a state court judgment and violate the Rooker-Feldman doctrine.

See Exxon Mobil Corp., 544 U.S. at 284.

Pet. App. 39

others similarly situated and that there is no rational

basis for the difference in treatment.” Village of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per

curiam).

The first prong of a “class of one” theory

requires proof of intentional discrimination, which, as

we have recently clarified, a plaintiff may show

through direct or circumstantial evidence. Green

Genie, 63 F.4th at 527–28. “Direct evidence is evidence

that proves the existence of a fact without requiring

any inferences.” Rowan v. Lockheed Martin Energy

Sys., Inc., 360 F.3d 544, 548 (6th Cir. 2004). Fouts

does not argue that Defendants directly discriminated

against him by passing the term-limit amendment,

nor does his complaint allege evidence of direct

discrimination. Instead, as stated, it contends that

the term-limit amendment, in effect, only bars him

from office as other city officials could exploit the

purported “loophole” in the amendment by resigning

from office before they finish a “complete” term.

Compl., R. 1, Page ID #11. This allegation requires us

to make too many inferences to glean the intent of City

Council members to qualify as direct evidence.

Nor has Fouts alleged sufficient circumstantial

evidence to show intentional discrimination. He

argues that he has identified a similarly situated

comparator who Defendants intentionally treated

differently, which if true would satisfy the first prong

of the “class of one” claim. Green Genie, 63 F.4th at

528. However, a comparator must be “similarly

situated in all relevant respects.” EJS Props., 698

F.3d at 865 (citation omitted). In this case, Fouts

claims that a City Council member, Patrick Green, is

a sufficiently similar comparator because the term-

Pet. App. 40

limit amendment—which also applied to City Council

members—applied differently to Green even though

he also had served three terms as a Council member.

But, as Fouts himself acknowledges, Green did not

serve three “complete” terms on the City Council, but,

instead, resigned early from his third term. See Boike

v. Green, No. 365681, 2023 WL 3588168, at *1 (Mich.

Ct. App. May 22, 2023) (per curiam). Because the

term-limit amendment bars individuals from holding

office only after the greater of three complete terms or

twelve years, Green was permitted to serve for a

fourth term on the City Council. Id. By contrast, the

term-limit amendment would bar Fouts from running

for a fifth term as he had already served more than

three complete terms and for more than twelve years.

Plainly, then, Fouts and Green are not similarly

situated in one of the most relevant respects: whether

they meet the criteria for the term-limit amendment

to apply.

Furthermore, even if Fouts had sufficiently

alleged that Defendants intentionally discriminated

against him by proposing and enforcing the term-limit

amendment to bar him from running for office, as

stated, the term-limit amendment clearly passes

rational basis review. Accordingly, Fouts has failed to

state a claim under the Equal Protection Clause.

III. CONCLUSION

For the reasons set forth above, we AFFIRM

the district court’s dismissal of Fouts’ complaint.

Because we find that Fouts failed to allege a

constitutional violation, we need not reach

Defendants’ alternative grounds for affirmance.

Pet. App. 41

_____________

APPENDIX C

_____________

Sec. 4.3—Certain persons ineligible for city office.

(d) A person shall not be eligible to hold the office of

mayor, city council, city clerk or city treasurer for

more than the greater of three (3) complete terms or

twelve (12) years in that office.

Sec. 4.4—Terms of office.

(d) A person shall not be eligible to hold the office of

mayor, city council, city clerk or city treasurer for

more than the greater of three (3) complete terms or

twelve (12) years in that particular office.

Warren, Michigan, City Charter §§ 4.3(d) and 4.4(d).